Tech Giants Google, Twitter, and Facebook Under Fire for Having Algorithms that Favor Displaying Some Content Over Others: Is New Regulation on the Horizon?

September 17, 2018

At a time when net neutrality was recently repealed, tensions regarding internet regulation have been especially high lately. Therefore, it did not come as a surprise when the White House made national news regarding possible regulation of Google.
The most recent news started when President Trump did a cursory Google search of the words “Trump News” on the morning of August 28th. After seeing the search results, President Trump shot off several tweets claiming that Google’s search engine is “rigged,” because it displays results from predominantly liberal-leaning news organizations. Soon after, President Trump’s economic advisor Larry Kudlow, cryptically stated that the White House was going to be “looking into” Google.

“Google’s search engine, accounting for more than 90% of all search traffic globally, indisputably has a major societal impact which is currently exclusively managed and controlled by Google.”

President Trump’s mention that 96% of search results are liberal-leaning comes from a PJ Media article where the author searches “Trump” and counted how many of the results were from “right-leaning” sites and how many were from “left-leaning” sites. The PJ Media article also notes that several right-leaning news publications have noticeably lost traffic after some of Google’s adjustments to its search algorithm, an especially vexing problem considering many companies like Google keep their algorithms secret for proprietary or fairness reasons.
The article does raise several questions, including whether the analysis considered the popularity of some of the left-leaning publications versus the right-leaning publications or whether there may have been other causes for the decrease in internet traffic. That being said, Google’s search engine, accounting for more than 90% of all search traffic globally, indisputably has a major societal impact which is currently exclusively managed and controlled by Google.
Select courts have ruled that search engines are constitutionally protected as an expression of free speech holding that companies like Google exercise speech-like discretion when choosing which search results to feature. The fact that Google is seeking to have its search algorithm considered free speech does not come as a surprise. Having this constitutional protection would likely make regulating Google’s search algorithm much more difficult, if not impossible. Once something is held as a constitutionally protected right, there often is not much to do in terms of recourse.
Still, the topic is highly contentious. To consider a search algorithm free speech seems, at the very least, to stretch our typical notions of speech as a constitutionally protected right. A search engine, or the underlying algorithm, seems like more of a mechanism for its users to access free speech in the results than an example of free speech itself. Similarly, it seems odd to consider that when a user types their inquiry into Google’s search engine, the results popping up are the search engine “speaking” or “responding” to the user. When Coca-Cola decides which drinks to put in its vending machines, is this an expression of free speech as well? Or, should this decision be characterized as purely a business decision, which would leave it more open to regulation?
After speaking with Mark Zuckerberg, CEO of Facebook, in April, Congress is looking to continue exploring the effect that major websites’ algorithms have on the content seen by consumers. Congress will be sitting down with Jack Dorsey, CEO of Twitter, and Sheryl Sandberg, COO of Facebook, on September 5th. Google has also been invited but has not yet agreed to sending Larry Page, CEO of Alphabet, the parent company of Google. The idea of Google’s search engine algorithms influencing search results, or other influential websites like Twitter or Facebook influencing content, does highlight a fascinating and growing issue, especially given the prominence of each of these tech giants. Only time will tell exactly what happens, but one thing is for sure – these hearings are worth keeping an eye out for.