As more bottlenecks emerge online, we’re going to hear about “new neutralities” beyond net neutrality. For a state of the art discussion of the issue, check out Mark Patterson’s article in the Fordham L. Rev. (“Non-Network Barriers to Network Neutrality”).
Even though search engines are presumably outside the jurisdiction of the FCC, if we do indeed have a national Internet policy that makes it impermissible to “significantly impede[] consumers’ ability to access the content and use the applications of their choice,†it is hard to see why both requirements of neutrality and disclosures of non-neutrality would not apply just as strongly, and perhaps even more strongly, to search engines as to access providers. . . .
[T]he view that search engines are neutral, or neutral enough, presumably relies upon two assumptions: that they can counter optimization efforts and that a non-neutral approach instituted by the search engine itself would, if discovered, result in loss of users. Each of these assumptions seems questionable. Although Google appears to devote significant effort to discounting at least the most blatant versions of SEO, there is little information available on how successful its efforts are. And since there has been no dramatic disclosure of biased search-engine results, it is difficult to know what the effect of such a disclosure would be, especially with Google’s large market share.
The current situation with regard to search is therefore not dissimilar to that when there was uncertainty with regard to Comcast’s conduct. That is, there is reason to think that there might be non-neutrality, but there is no firm evidence of it. The concerns with Comcast might have been stronger, and they were fairly quickly confirmed, but the significance of those differences is not clear. When network traffic is impeded, the user will generally be aware of the problem, but if search results are skewed, it is not clear that users would even detect it.
For more on the power of Google, check out James Grimmelmann’s latest piece on the proposed Google Books settlement.
What to do? Well, the New York Times is getting in on the act, discussing the possibility of giving “some government commission the power to look at” tweaks of Google’s supersecret algorithm. A Federal Search Commission, perhaps?