Ohio v. Google: A question of designation

Ohio Attorney General Dave Yost filed a lawsuit asking the court to declare Google a public utility. A successful suit would force Google away from prioritising its entities in search results. The ramifications for independent service providers are significant, as they would no longer have to battle their way up the rankings in the face of a skewed platform.

Google has already responded as expected, stating that “Google Search is designed to provide people with the most relevant and helpful results”. Google’s lawyers rejected the suit outright, arguing that it had “no basis in fact or law”.

The suit comes after legal scholars reviewed the concurring judgment of Justice Clarence Thomas in Biden, President of the US v. Knight. Thomas argued that, commonly, private corporations aren’t constrained by the First Amendment in that they can permit whomever they want to use their services. However, such protection would not apply “if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.”

The subtly of Thomas’s argument is that if a suit successfully designated a platform a public utility, the Supreme Court could uphold rulings when the First Amendment is the crux of the lawsuit.

Google will fight this current lawsuit all the way to the Supreme Court to protect its integrated sales model. The other prominent social media platforms and search engines are likely to get dragged into the argument, as they have similar business models to Google.

Data Scraping and Linkedin

The other significant lawsuit that has resurfaced is hiQ Labs v. LinkedIn. The plaintiff, hiQ Labs, sought an injunction prohibiting LinkedIn from blocking it from accessing the publicly available data from its platform. This lawsuit will return on appeal to the Supreme Court.

LinkedIn relied on the Californian Digital Copyright Act (DMCA) in asking hiQ to cease and desist using data on its web site for commercial purposes. The DMCA is the same Act that many of Silicon Valley’s mega-Corps use for protection against data harvesters.

The DMCA acts in concert with Section 230 of the Communications Decency Act to provide another moat for the large social media platforms. Section 230 says that the platforms are conduits and not responsible for the posts of their users. Recently, questions have been raised about the Section 230 question when Facebook formalised its advisory Board dealing with its Dangerous individuals and organisations policy. In another case, Loomer v. Facebook, the media giant eschewed the protection of the DMCA and claimed it was, in fact, a publisher.

The current crop of lawsuits should be viewed as part of a general trend towards resetting the boundaries and designations of major service providers. The next round of cases will be against cloud service providers, as they come to grips with their dominant market positions and behaviour that risks comparisons to the great monopolies of the nineteenth century.

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