Google's search service is not a phone or rail company as Ohio AG Yost contends in lawsuit

Ohio has made the news, but not for the success of Ohio State football or the induction of a new musical act into the Rock and Roll Hall of Fame. This time, it’s because of Ohio Attorney General Dave Yost’s quixotic effort to have Google’s search engine declared a common carrier.

Traditionally, a common carrier is a business that opens itself indiscriminately to public use. It is on this basis that Ohio, other states, and the federal government all have imposed nondiscrimination requirements on entities like railroads and telephone companies.

In the case of a railroad, rail companies that offer services to all comers to transport goods from one point to another are subject to a requirement that they don’t offer different prices to different customers. In the case of telephone companies that promise to connect people for private communications, common-carriage requirements mean that they must serve all customers and carry all lawful traffic on an equal basis.

In the case of Ohio’s lawsuit against Google, Yost is seeking to prevent the company from giving preferential treatment to its own products or services in search results.

Yost's Google lawsuit would hurt users

The problem is that, not only is Google not a common carrier under the standard legal definition of the term, but the company has a clear First Amendment interest to determine how it wants to display its own search results. It is ultimately no different than a travel agent giving her opinion as to the best hotel in Cincinnati.

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The primary reason it is clear that Google is not a common carrier is that it doesn’t offer itself indiscriminately for public use. Google instead offers tailored responses to queries with what they hope an individual user will find to be the most relevant information. If a user searches for restaurants, Google’s algorithm will consider not only the user’s location, but also what options he clicked when running similar queries in the past, or even whether he has visited a particular restaurant’s website.

This process is much more like answering a question than it is like transporting private communications between individuals using a telephone line or cell towers. In fact, Google users will often receive different results even for the same search. It is not at all like the undifferentiated transport of goods or persons by a rail company.

Google is protected by First Amendment

Moreover, Google’s search results constitute speech. That’s why several federal district courts have found that search engines like Google have a protected First Amendment interest in those results. Google is trying to provide the best possible answer for its users. This may include integrating direct answers to questions in ways that prioritize Google products and services where they are directly relevant.

If Google fails to give users the most relevant information, they will search out information elsewhere, and the service will not be as profitable for advertisers. There are other competing general search engines like Bing, and specialized search engines like Yelp or Amazon also provide useful information. There is no reason to think that Google giving its own products or services preferential treatment is beyond what a user might expect, when competition is just a few clicks, swipes, or keystrokes away.

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In fact, there are reasons to believe that Google search users prefer it precisely because they think it delivers better results, including how it integrates Google’s other products and services. For example, a search for an Italian restaurant is enhanced by having Google’s reviews and maps integrated in the results. This lets users compare the ratings that consumers have given those restaurants, and to see how easy it would be to walk or drive to each. Restricting Google from this kind of “self-preferencing” by invoking common-carrier requirements would make the service less useful, and leave consumers worse off.

This is precisely what happened in Europe after the EU passed a ban on self-preferencing. A user must conduct her restaurant search on one site, then go to another site to get reviews, and then yet another site for directions. This extra work amounts to a cost imposed on users by government regulation.

Similarly, if Yost succeeds in his effort to impose common-carriage nondiscrimination requirements on Google, the result will be less useful search results. It would also stretch the legal meaning of “common carrier” beyond the breaking point, and violate the First Amendment. Ohio deserves better.

Ben Sperry is a senior scholar with the International Center for Law & Economics (ICLE) and co-author of ICLE’s amicus brief in the case Ohio v. Google.

This article originally appeared on The Columbus Dispatch: Ohio's lawsuit against Google wrong, could make search results worse