Don't Be Confused: Google is a Common Carrier

Tech community critics of Ohio’s suit to rein in Google’s abuse of its search engine dominance misunderstand both the case and the law. It is critical for those in the tech to understand why we are all on the same side.

Self-preferencing is the evil we fight in suit against Google. Google Search controls 92% of search globally. Google has long used its dominance of search to advance its other business lines. When Google rolled out Google Local, suddenly, Yelp!, Tripadvisor, and other review sites were demoted. Google Plus was forced into Search Engine Results (“SERPs”) when they didn’t even register in organic results. Google Flights is integrated into SERPS. YouTube videos will populate over Vimeo. Google Search has become so dominant that its self-preferencing can no longer be countenanced.

We don’t naively ask that search engines not rank results for relevance. That would be moronic. Relevance ranking is what a search engine does. The world relies on Google’s search algorithms. Our suit acknowledges their superiority. We also acknowledged the network effects that make Google’s algorithms so refined. We simply ask that Google rely on them too. What’s the harm in that?

It is true that we are updating “common carriage,” an old legal concept, to fit the modern times. The basic rule of common carriage is the provider must treat all comers fairly and equitably. Those who say a common carrier must, under the law, look like a telephone company or an airline are conceptually stuck in a snapshot of the recent past. Common law concepts evolve with the times. Thus, there is nothing extraordinary about common carriage evolving into the information age. 

Ferries are the quintessential early example of a common carrier. Just as a ferry might have carried crops to market, Google ferries information across a sea of data. Mills were also common carriers. They essentially had local monopolies on processing grains, just as Google essentially has a monopoly on search. When one focuses on the legal concepts, and not a particular manifestation, the analogies become clear.

Some say broadband providers are like common carriers, but that Google Search isn’t. The truth is regardless of whether you use fiber, coax, public WiFi, 4G or 5G as your connection to the internet, all paths lead to Google search as the hub that directs your online journey.

We also argue that Google search is a public utility. Before you imagine the Water Works space on a Monopoly board, let’s discuss the legal definition. A public utility, when boiled to its essence, is a common carrier that serves a critical public need. So, if we are correct that Google Search is a common carrier, then for it to be a public utility, all that we need to establish is that Google search provides 1) a necessary service to the public, 2) in a critical — think monopolistic — kind of way. Check and check. We all spend time online. We have to wear watches that alert us that we’ve been sitting too long so that we unglue our eyes from our screens. Our work, our news, our recreation, our shopping, our friendships all occur online. Google’s 92% share of global search (even more on mobile), is ever growing. That’s the definition of monopolistic. Thus, Google search is a public utility. It is that simple.

Some argue that Google isn’t a “natural monopoly.” A natural monopoly is one where high start-up costs or powerful economies of scale result in significant barriers to entry for competitors. Webcrawlers, datacenters, and search algorithms are incredibly expensive to build and refine. Microsoft has spent tens of billions building Bing (which also powers Yahoo and Duck Duck Go). Bing has less than 6% of the market. Since its creation in 2009, Bing has only rarely turned a profit, losing billions in some years. So, yes, there are incredibly high start-up costs to compete with Google Search.

As for economies of scale, we all know about “network effects.” The more people use Google search, the more reliable it becomes, which leads to more use. Google search, because of its dominance, is in a position to refine its algorithms at rates exponentially above any competitor. At the dawn of the Internet, we all foresaw a market ecosystem where competition would always be fierce. Turns out that for search, the competition wasn’t within the market — it was competition for the market. Google search won. So, Google search has become a natural monopoly.

What’s the upshot of Google Search being a public utility? You may immediately picture a draconian regulatory regime that stifles innovation and competition while returning us to a Web 1.0 search engine. You would be wrong. Common Law status doesn’t carry any regulatory regime. It merely imposes a duty to serve the public. If Google controls over 90% of a resource as critical as internet search, then it has a duty to do so in a way that serves the public.

This doesn’t mean Google can’t innovate. But when Google innovates in search, it will not be able to do so in a way that intentionally benefits its other lines of business.

Take the Google Flights example. When you search for a flight from San Francisco to Columbus to attend a Buckeyes game, the Google SERP may display links to Orbitz, Travelocity and Delta. But Google Flights is the only “vertical search” provider with its platform and vertical results integrated into the SERP. The integration is a great innovation. But, if we are right, Google has a duty to allow Orbitz, Travelocity, and Delta the same access as Google Flights for integration into the SERP. If integration is an advertising feature, let them all bid. If integration is an enhanced search feature, then populate the most relevant for the user. Opening integration opportunities enhances search.

The same is true for local search. Google could integrate links to Yelp! or Tripadvisor reviews into local search results, thereby allowing the best reviews to be available on the SERP. Just to be clear, we don’t demand that Yelp! results be shown, but if the Google algorithms determine them to be the most relevant, then Google should not be permitted to bury them.

Far from being confused, we well know what Google search is, and how Google is manipulating the results to benefit its business lines. We also know a legal framework ready to address it — call it Common Carrier 3.0.

Charles M. Miller is Counsel to the Attorney General Dave Yost of Ohio.