If Search Neutrality Is the Answer, What’s the Question?

Abstract

In recent months a veritable legal and policy frenzy has erupted around Google generally, and more specifically concerning how its search activities should be regulated by government authorities throughout the world in the name of ensuring “search neutrality.”  Concerns with search engine bias have led to a menu of proposed regulatory reactions.  Although the debate has focused upon possible remedies to the “problem” presented by a range of Google’s business decisions, it has largely missed the predicate question of whether search engine bias is the product of market failure or otherwise generates significant economic or social harms meriting regulatory intervention in the first place.  “Search neutrality” by its very name presupposes that mandatory neutrality or some imposition of restrictions on search engine bias is desirable, but it is an open question whether advocates of search neutrality have demonstrated that there is a problem necessitating any of the various prescribed remedies.

This Article attempts to answer that question and evaluates both the economic and non-economic costs and benefits of search bias, as well as the solutions proposed to remedy perceived costs.  It demonstrates that search bias is the product of the competitive process and links the search bias debate to the economic and empirical literature on vertical integration and the generally-efficient and pro-competitive incentives for a vertically integrated firm to favor its own content.  This Article concludes that neither an ex ante regulatory restriction on search engine bias nor the imposition of an antitrust “duty to deal” upon Google would benefit consumers.  Moreover, it finds that the proposed remedies substitute away from the traditional antitrust consumer welfare standard and would impose costs exceeding any potential benefits.