For my contribution to Berin Szoka and Adam Marcus’ (of TechFreedom fame) awesome Next Digital Decade book, I wrote about search engine “neutrality” and the implicit and explicit claims that search engines are “essential facilities.” (Check out the other essays on this topic by Frank Pasquale, Eric Goldman and James Grimmelmann, linked to here, under Chapter 7).
The scare quotes around neutrality are there because the term is at best a misnomer as applied to search engines and at worst a baseless excuse for more regulation of the Internet. (The quotes around essential facilities are there because it is a term of art, but it is also scary). The essay is an effort to inject some basic economic and legal reasoning into the overly-emotionalized (is that a word?) issue.
So, what is wrong with calls for search neutrality, especially those rooted in the notion of Internet search (or, more accurately, Google, the policy scolds’ bête noir of the day) as an “essential facility,” and necessitating government-mandated access? As others have noted, the basic concept of neutrality in search is, at root, farcical. The idea that a search engine, which offers its users edited access to the most relevant websites based on the search engine’s assessment of the user’s intent, should do so “neutrally” implies that the search engine’s efforts to ensure relevance should be cabined by an almost-limitless range of ancillary concerns. Nevertheless, proponents of this view have begun to adduce increasingly detail-laden and complex arguments in favor of their positions, and the European Commission has even opened a formal investigation into Google’s practices, based largely on various claims that it has systematically denied access to its top search results (in some cases paid results, in others organic results) by competing services, especially vertical search engines. To my knowledge, no one has yet claimed that Google should offer up links to competing general search engines as a remedy for its perceived market foreclosure, but Microsoft’s experience with the “Browser Choice Screen” it has now agreed to offer as a consequence of the European Commission’s successful competition case against the company is not encouraging. These more superficially sophisticated claims are rooted in the notion of Internet search as an “essential facility” – a bottleneck limiting effective competition. These claims, as well as the more fundamental harm-to-competitor claims, are difficult to sustain on any economically-reasonable grounds. To understand this requires some basic understanding of the economics of essential facilities, of Internet search, and of the relevant product markets in which Internet search operates.
The essay goes into much more detail, of course, but the basic point is that Google’s search engine is not, in fact, “essential” in the economically-relevant sense. Rather, Google’s competitors and other detractors have basically built precisely the most problematic sort of antitrust case, where success itself is penalized (in this case, Google is so good at what it does it just isn’t fair to keep it all to itself!).
Search neutrality and forced access to Google’s results pages is based on the proposition that—Google’s users’ interests be damned—if Google is the easiest way competitors can get to potential users, Google must provide that access. The essential facilities doctrine, dealt a near-death blow by the Supreme Court in Trinko, has long been on the ropes. It should remain moribund here. On the one hand Google does not preclude, nor does it have the power to preclude, users from accessing competitors’ sites; all users need do is type “www.foundem.com” into their web browser—which works even if it’s Google’s own Chrome browser! To the extent that Google can and does limit competitors’ access to its search results page, it is not controlling access to an “essential facility” in any sense other than Wal-Mart controls access to its own stores. “Google search results generated by its proprietary algorithm and found on its own web pages” does not constitute a market to which access should be forcibly granted by the courts or legislature.
The set of claims that are adduced under the rubric of “search neutrality” or the “essential facilities doctrine” against Internet search engines in general and, as a practical matter, Google in particular, are deeply problematic. They risk encouraging courts and other decision makers to find antitrust violations where none actually exist, threatening to chill innovation and efficiency-enhancing conduct. In part for this reason, the essential facilities doctrine has been relegated by most antitrust experts to the dustbin of history.