Regulating Search Engines paper - detailed notes
I made some notes as I went through the "Federal Search Commission?" paper, and since I've already given an overview of my thoughts, I decided to post these for whatever value they have in terms of the specifics of the argument, and where I believe it doesn't work. Again, basically, I sympathize with the examination of the concentration of media power. But the claims as to why it's not like other media power simply don't seem to me to be valid.
The first dimension involves an important preliminary question: what exactly is the relevant speech in relation to which search engines assert first amendment rights?
This: "If you're looking for pages about "widgets", the most relevant page is this, the second most relevant page is that, the third, etc".
When, however, the frame of reference is the supposed speech embodied in rankings the claim that regulation of search results violates the first amendment becomes highly precarious. It is highly questionable that search results constitute the kind of speech recognized to be within the ambit of the first amendment by either existing doctrine or any of the common normative theories in the field. While having an undeniable expressive element, the prevailing character of such speech is performative rather than propositional.
Regrets, I don't buy it. I don't see a way you can claim "Vote for X" is "propositional" while "The most relevant page for X is Y" is "performative". This part in the reasoning seems flawed: "To use the terminology of Robert Post, the speech of search engines as embodied in rankings is not a form of social interaction that realizes first amendment values."
That claim is problematic in a very deep sense, because if search engines rankings embody social values, then they're a form of social interaction in the relevant sense. The argument can't have it both ways, that they're expressions of the algorithm-writer's bias and prejudice for the sake of criticizing them, but not social interaction when it comes to regulation.
After all, one could say everything from tabloid newspapers to book publishing is not social interaction, in that they're monologue or pontification, not a town hall meeting.
In short, extending the compelled speech rule to cover the mere observations on relevance implied in search engine rankings seems to take the doctrine to domains where it was never meant to go.
But the problem here is taking that view in the opposite direction, to wit:
The evaluation of the value of bonds which was found to be an "opinion" in that case, while not the strongest case of an expression subject to a dialogical relationship, still has some potentially-dialogical features. Listeners can agree or disagree with the evaluation, criticize or support it, and make arguments for or against it. Search engine rankings, by contrast, are not perceived by users as an expression with which they can interact in ways characteristic of what we usually refer to as an "opinion."
Again, this just doesn't seems correct to me. Generally we have as little ability to dialog with a statement like "Standard and Poors rated this bond as junk" as "Google blacklisted this site as spam". In both cases, the mechanism used to determine the result is proprietary, and the institution offers it on a take-it-or-leave-it basis.
As in the case of the compelled-speech rule, recognizing the incidental and limited form of "opinions" implicit in search results -- i.e. opinions about relevance to users -- might cause the doctrine to spin out of control.
Right, right, got it. This idea is seen (in the reverse) in a lot in net-ranting. You can't convert every statement into protected speech by the magic of prepending "It's my opinion that ...", and so it's an opinion, which is protected speech, ha-ha-ha gotcha. Calling every statement an opinion isn't a get-out-of-regulation-free card. Understood. However, trying to turn it around in the other direction is just as bad, in that there's a problem playing off the many senses of the word "opinion". A search engine result is more like a judicial "opinion", which doesn't map exactly to the most common use of the word either.
The Google does not need me to save it, and I certainly know how its results can be gamed. But I also don't think it can be so readily categorized as somehow apart from standard journalism.
By Seth Finkelstein | posted in google , legal | on August 15, 2007 01:34 PM (Infothought permalink)
