Federal Search Commission? Access, Fairness, and Accountability in the Law of Search

Networks, the Internet, and Cloud Computing, Internet and Search and Advertising

Article Snapshot


Oren Bracha and Frank Pasquale


Cornell Law Review, Vol. 93, No. 6, September 2008


This paper asks if Internet search engines can be regulated without violating free speech rights.

Policy Relevance

Rules that required search engines to be more neutral would not violate the free speech rights of search engines.

Main Points

  • Dominant search engines such as Google that gather information about users, rank web sites, and process information can be biased.

  • In three court cases, legal claims based on allegations that search engines have manipulated the results of online searches so as to limit some speakers ability to reach their audience have been rejected. Two courts emphasized that search engines rankings are opinions protected by First Amendment rights of free speech, similar to newspapers.

  • Search engines are important gatekeepers on the Internet. They are more like common carriers than they are like newspapers.

  • Users’ choices in the market can sometimes stop search engines from acting unfairly, but these constraints will not ensure that all speakers can be heard online or protect values like democracy.

  • Search engines should be required to disclose more information about how they operate, which is usually now protected as a trade secret.

  • The public interest in disclosure should outweigh the free speech rights of search engines.

  • New rules should require firms like search engines to reveal how they manage information and networks to maintain their integrity.

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