This Article provides a road map to issues of search engine law. It indicates what questions we must consider when thinking about search engines, and it indicates the interconnections among those questions. It does not endorse any particular normative framework for search. Nor does it recommend who should regulate search. Instead, it provides the necessary foundation for informed decision-making, by whatever regulator and whatever its normative approach.
Part I will explain how modern search engines function and describe the business environment within which they operate. Search engine operations can be understood in terms of the information flows among four principal actors: search engines themselves, their users, information providers, and third parties (such as copyright holders and censorious governments) with interests in particular content flows. There are, in turn, four significant information flows: the indexing by which a search engine leans what content providers are making available, user queries to the search engine for information about particular topics, the results returned by the search engine to users, and finally, the context that providers send to users who have found them through searching. Because so many major search engines are funded through advertising, this Part will also includes a survey of how search engine advertising works and the distinctive fraud problems confronting search engines and their advertisers.
Part II, the heart of the Article, will present a descriptive analysis of the legal struggles over search, showing how questions of search policy, many of which have long been latent in different fields of Internet law, are increasingly confronting lawyers, courts, and regulators. It will describe those struggles in terms of the legitimate interests that each of these actors brings to debates over search. Users want high-quality results without too great a sacrifice of privacy. Content providers want favorable placement in search results without paying more than their fair share of the costs of supporting search and without facing unfair competition from search engines. Third parties want to prevent unauthorized distribution of copyrighted content, to preserve their own privacy, to protect their reputation, and to preserve user virtue. And finally, search engines want to preserve their ability to innovate, to protect themselves from fraud, and to ensure that the search market remains open to competition. Each entry in this list of a dozen interests has its own associated legal theories; this systematic taxonomy allows us to recognize how any given legal theory affects the search ecology.
Part III will then show, with five examples, how taking a broad view of search yields otherwise unavailable insights into pressing controversies. This is not to say that the end result must be a body of search-specific law, only to note that failing to consider the larger forces at work in search is antithetical to sensible policy-making. First, the broad, systematic view illustrates how various claims in search engine disputes can serve as functional substitutes for each other. Second, it shows that the degree of transparency of the search process is a highly contested variable, which some concerns pressing for greater transparency and some pressing for less. Third, it illustrates that user privacy is a deeply knotty problem, and that preserving reasonable user expectations will involve difficult trade-offs with other interests—including some of users’ own. Fourth, it shows that we require a theory of search engine speech; the most well-developed theory of search engine results as speech so far articulated by a court is insufficiently complex. And fifth, it illustrates the richness of debates over search engines’ relationship to providers’ trademarks.
93 Iowa Law Review 1 (2007).
Internet Law | Privacy Law
93 Iowa Law Review 1 (2007).