Regulating Search Engines: Taking Stock and Looking Ahead

"To exist is to be indexed by a search engine" (Introna & Nissenbaum) TABLE OF CONTENTS I. INTRODUCTION II. A BRIEF (AND CASUAL) HISTORY OF SEARCH ENGINES III. SEARCH ENGINE REGULATION: PAST AND PRESENT A. OVERVIEW OF SEARCH ENGINE-RELATED CASES B. LEGISLATION AND REGULATION C. SUMMARY III. POSSIBLE FUTURE: HETEROGENEOUS POLICY DEBATES AND THE NEED FOR A NORMATIVE FRAMEWORK A. THEMES OF FUTURE POLICY DEBATES B. CHALLENGES AHEAD C. NORMATIVE FOUNDATIONS IV. CONCLUSION I. INTRODUCTION Since the creation of the first pre-Web Internet search engines in the early 1990s, search engines have become almost as important as email as a primary online activity. Arguably, search engines are among the most important gatekeepers in today's digitally networked environment. Thus, it does not come as a surprise that the evolution of search technology and the diffusion of search engines have been accompanied by a series of conflicts among stakeholders such as search operators, content creators, consumers/users, activists, and governments. While few tussles existed in the initial phase of innovation where Internet search engines were mainly used by 'techies' and academics, substantial conflicts emerged once the technology got out of the universities and entered the commercial space. When search technology advanced and search services gained commercial significance, these conflicts became more severe and made their way into the legal arena. At the core of most of these disputes were controversies over intellectual property, particularly trademark and copyright issues. Recently, the growing market power of a few search engine providers and their increased role in controlling access to information and agenda setting has triggered a new series of concerns and conflicts, permeating consumer protection, competition law, and free speech issues. Some of these issues have been subject to litigation; others have been dealt with in the context of industry self-regulation. However, certain issues are or will be considered by regulators and legislators. In contrast to the initial responses by the legal system to the new phenomena--responses that have been rather perfunctory and based on traditional doctrines--the emerging legal and regulatory issues are likely to concern the role and functionality of search engines in broader terms. At this inflection point, it becomes important to avoid premature legislative or other forms of governmental intervention. Rather, a thorough assessment of alternative regulatory approaches and strategies that might be applied in the future is required. Such an assessment, however, requires an open discussion and shared understanding of what fundamental policy objectives should underlie today's information society in the first place. In this light, the paper has two objectives. First, it seeks to take stock and provide a brief summary of the current state of an emerging law of search engines, mainly from a U.S. perspective. Second, it aims to contribute to the development of an analytical framework that may provide guidance in assessing proposals aimed at regulating search engines in particular and search more generally. The paper is organized in three Parts. In Part I, I provide a brief history of search engines to set the stage for Part II, which will briefly discuss the initial responses by the legal system to the phenomenon "search engines," hereby focusing on the past and the present and looking at case law on the one hand and regulatory as well as legislative interventions on the other hand. This discussion is not intended to be a detailed exposition, but rather will simply map out overall trends. Part III, in broader terms, identifies key policy themes of an evolving debate about the regulation of search engines that seems more comprehensive than previous discussions. Against this backdrop, I will briefly illustrate the need for a systematic evaluation of alternative (or competing) approaches to search regulation. …