from the it's-not,-stop-it dept
We’ve gone into detail as to why it makes no sense at all, legally or conceptually, to call a website a common carrier. We’ve also explained how conservatives — bizarrely the ones pushing for this, despite decades of claiming that common carrier designations were an affront to all that is good and holy — aren’t going to like it if websites are declared common carriers. And, we just had this fantastic ruling in the 11th Circuit explaining, in clear and direct terms, why websites are not common carriers.
And, yet, now a state court in Ohio has said that Google may just be a common carrier. There’s a lot going on here, but it’s a really dumb ruling by a very confused judge. This is the case that we wrote about a year ago, in which Ohio filed a weird lawsuit that reads like it wants to be an antitrust lawsuit against Google, but focuses on declaring the company to be a “common carrier.” As we noted when that lawsuit came out, most of it was completely nonsensical. Even if Ohio got what it wanted, it still wasn’t clear what it would mean for Google to “not discriminate” against websites, because the entire point of a search engine is to discriminate. It ranks its results and those rankings are a form of discrimination: discriminating against less relevant and useful results in favor of more relevant and useful results.
So, it seemed fairly obvious that this was a garbage lawsuit filed for garbage reasons. And, yet, Judge James Schuck has now allowed it to go forward rather than dismissing it. There’s a lot of nonsense in the ruling, but lets start with what a common carrier means under Ohio law:
Under Ohio law, a common carrier is defined as one who undertakes for hire to transport persons or property, and holds itself out to the public as ready and willing to serve the public indifferently and impartially to the limits of its capacity.
So, um, Google search meets literally none of those conditions. It is transporting neither persons nor property. It does not serve the public indifferently and impartially, because you go to Google in the first place to get Google’s recommendations on how to answer your query. There is no such thing as an impartial search result. That’s not a thing.
But, apparently, the judge here has a different view of the world.
Thus, there must be a “public profession or holding out to serve the public.” … In that regard, the State has alleged that Google’s stated mission is to “organize the world’s information and make it universally accessible and usable.” … A reasonable factfinder could conclude this unsolicited admission by Google, if true, satisfies such a standard. Google’s response–its citation to “Our Approach to Search” from its “How Search Works” webpage–goes beyond the four corners of the State’s Complaint and cannot be considered at this stage of the proceeding.
So, already, this is… bizarre. Saying that you want to organize the world’s information and make it universally available is about for users of the search engine, not for the websites it links to (though, even that shouldn’t much matter), and the state’s complaint is not that Google is blocking users from doing searches… just in how it organizes results.
So, already, the judge is confusing two different parties here. Also, a marketing message about organizing the world’s information is, in no way, a legal admission that it will include ALL information.
It gets worse. Google points out that it’s not a common carrier because it doesn’t carry anything, as I’ve pointed out. The judge shrugs that off:
Herein lies the difficulty in applying 18th century common law to 21st century technology and commerce. In the internet age, information is often as valuable as goods. From telegraph, land-line telephones, cable television, and cellular telephones, the law of what is transported and how it is transported has developed over time. The State has alleged that Google carries information. For purposes of the present posture, the State’s allegations are sufficient.
I mean, what? While it’s true that technology has changed, we also have many, many, many decades of law regarding common carriers for communications. And Google search does not “carry” information under any of those. To simply say that alleging otherwise is enough is ridiculous. And it opens up the ability for the state to effectively harass almost any business by claiming it’s a common carrier.
Then there’s the issue of a common carrier service requiring payment. As Google rightly notes, you don’t pay to use Google search. The state argued this doesn’t matter because you “pay” with “data.” Of course, if that’s accurate, then, you can argue ANYTHING is a pay service, so long as there’s some sort of benefit out of it. That’s nonsense. But, the judge buys it, claiming “an inference may fairly be drawn” that by using Google’s search and providing the company data, you are paying for it.
The judge also notes that direct fees are not necessary for common carriage, pointing to elevators.
To this extent, it appears more recent law has shifted from requiring a direct fee paid to the carrier. A mall does not charge a fee to members of the public who use its escalators. An office complex does not charge a fee to members of the public who use its elevators. An airport does not charge a fee to members of the public who use its terminals. Nonetheless, the availability of these conduits to the general public provides an important ancillary benefit to the owners of the mall, office building, and airport. In return for providing this important service, tenants rent space and perhaps pay more for that space because the landlord is able to provide the tenants’ customers with better and quicker access to the tenants’ spaces. No direct fee is paid to the landlord by the customers, but cases suggest the landlord is still functioning as a common carrier in those situations.
The judge then creates two hypotheticals, one about a version of Uber that does not exist, that was entirely advertising supported, and one about a subway system that is entirely taxpayer supported, noting there would be no direct fee for either, but both could be deemed common carriers. The Uber example seems particularly sketchy, since Uber certainly reserves the right to reject passengers, so I don’t see how the argument applies there. And as for a government provided service, well, that’s an entirely different category of service, so again… not applicable.
But, the judge deems the common carrier argument can move forward. It’s not final, this is just at the motion to dismiss stage where the judge is supposed to take everything the plaintiff pleads as true. So, it could turn around later. But, as a start, this seems ridiculous. This way, the government can basically allege almost any business is a common carrier, and force it to do all sorts of things.
From there, the case shifts to the question of, even if the company is a common carrier, is it a “public utility.” Here, the court rightly concludes that even if it’s a common carrier, Google is clearly not a public utility. It goes through a bunch of reasons why, some of which I think are a bit sketchy, but the main summary:
While it is no doubt a popular service, the public has no legal right to demand a device to search the internet. The lack of regulation means that Google is free to stop providing its search platform whenever it chooses. It could choose to focus on other parts of its company, or–as unlikely as it may seem–go out of business entirely. Google needn’t give notice or reason before doing so….
The public has a legal right to demand or receive electric, gas, water, and solid waste removal…. If the provider of these services were to cease operating, the public would be severely harmed by not having these essential public services. The public would rightly ask what the government would do to fill that void. This is the definition of an essential public service….
While Google Search is inarguably convenient and often used, it does not provide a fundamental life-essential service that the public has a right to demand and receive. Google Search barely existed two decades ago.
And even though Google Search has a 90 percent market share according to the State’s Complaint, were Google Search to cease operating, Google’s competitors, like Bing, Ask, and Duck Go, would undoubtedly fill the void left by Google’s departure. The minimal inconvenience of leaving users to type the web address of a different search engine into their search bars is not equivalent to the significant harm faced by the public if the local water company shuts down its pipes or the local electric company powers down the grid.
So, that’s all correct. But, weighing it against the common carrier analysis is unfortunate. Because it feels like the judge is trying to have it both ways here.
Then the court responds to Google’s (correct!) claim that declaring it a common carrier infringes on its 1st Amendment rights, and again, the 11th Circuit’s recent ruling makes it clear why it does. Unfortunately, Ohio is not in the 11th.
Instead, the court says that simply declaring Google a common carrier does not infringe on the 1st Amendment, as the real issue is what rules the state then requires the common carrier to follow. The court argues those could violate the 1st Amendment… but also, might not. I believe the judge then misstates several key rulings, including the same ones the 11th Circuit just used to invalidate much of Florida’s law, but again, Ohio ain’t in the 11th.
Basically, the court here says that the cases around compelled speech focused on situations where “the host’s message was impacted by the speech it was forced to accommodate,” but argues that isn’t the case with Google search.
There is minimal concern that Google Search’s users will believe that Google Search’s results constitute Google’s own speech. When a user search a speech by former President Donald Trump on Google Search and that speech is retrieved by Google with a link to the speech on YouTube, no rational person would conclude that Google is associating with President Trump or endorsing what is seen in the video.
What a weird hypothetical. And wrong. The issue is not the underlying content. The part is Google’s expression is the search ranking. And people do associate that with Google. If Google thinks this particular search result belongs at the top of a search results page, that’s Google’s expression. The underlying content is something different altogether.
And, um, why are we even using an example of Trump. No one is arguing that Google isn’t linking people to Trump speeches if they search for Trump speeches.
If the State obtains the relief it seeks in this case–an order that Google not self-preference–then any such concern of forced association would be all the more attentuated because the public would know that Google was being forced to host that video.
Huh? This is the most tautological bullshit I’ve seen in a while. It’s okay to compel speech, because once we compel speech people will know it’s compelled speech, and therefore, they’ll know that the host didn’t want that speech? How does that make any sense at all? Under that standard, the government can always compel speech.
And why does the court assume that the entirety of the public will know about this new regulation declaring the company a common carrier? What a weird bit of reasoning.
Either way, the case is not yet over, but it’s a very confused ruling. I don’t know enough about civil procedure rules in Ohio to know if Google can immediately appeal this ridiculousness, or if they have to move forward to discovery and summary judgment, but what a mess.
The standards here are nonsense, and basically open up any business to being declared a common carrier, based on the whims (or more likely, the political grandstanding nonsense) of any government official who wants to create a culture war by blaming a company.
Ohio: do better.