Google it today and you’ll see that the European Commission has turned up the heat in its long-running probe into anti-competitive behaviour by the web’s most popular search engine. EC competition chief, Margrethe Vestager, issued formal objections alleging that Google abuses its dominant position in the market of “general internet search”. In particular, the EC claims that Google artificially boosts its own products in returning Google comparison shopping results in its service “Google Shopping”, even if those products aren’t the best or cheapest – the “most relevant”, as the Commission puts it – for consumers.
Since taking office in November 2014, Vestager has made the Google inquiry a top priority, signalling a willingness to consider court battles and hefty fines if Google and other digital giants don’t fall into line with European competition law. In this, she has displayed a distinct shift from her predecessor, Joaquín Almunia, whose multiple attempts to achieve private settlement with Google fell apart a year ago, before descending into a political and economic boxing match.
Vestager’s announcement comes amidst increasing restlessness by European policymakers that “something must be done” about Google. Identifying with precision the source of that anxiety, and the appropriate focus of action, is rather more challenging. And it forces us to ask: what does the artillery of competition law offer? And is it gunning for the right target?
Accelerating complaints – or at least some of them
The EC’s current accusation is extremely narrow. It focuses on the first and clearest of a number of complaints filed in 2009-10 by various Google competitors – from other giants, such as Microsoft, to small, struggling or defunct web businesses. These complaints range from the EC’s current focus on Google’s prioritisation of its own products within vertical search services (currently, shopping, but this extends to maps, flights and news), to issues with Google’s scraping and fencing of datasets, often exclusively and at unmatched scale.
It is this sheer volume of data, matched with the self-reinforcing effect of Google’s market share (the more people search, the better search becomes), that makes its de facto monopoly such a concern, but also such a challenge to combat. Vestager’s announcement falls short of these broader concerns. She was at pains to point out the preliminary, fact-driven, legally-focused, apolitical nature of her inquiry. Such an approach is safe – it falls clearly within the domain of European competition law, and it accelerates Google towards addressing some real competitor concerns, even if some of those competitors are now more interested in backward compensation rather than forward innovation.
But while strategic for the track record of the Commission, this new development is rather less strategic for the broader digital landscape.
You can’t Google your way out of a power vacuum
Let’s return to the market in which Google is dominant: “general internet search”. This is a market that didn’t exist 20 years ago. And it is a market that cannot be underestimated. It is the marketplace of human knowledge, queries, anxieties, ideas, journeys, hopes, sorrows and dreams. The sociopolitical problem with search engines and, in particular, the search engine, is worthy of deep Foucaultian analysis. Search engines are not officially-sanctioned maps, nor old-style phone directories or broadcast services – all of which may be privatised, but are subject to oversight, transparency requirements and regulation. Google is our contemporary maker and breaker of truth, commerce and the stuff of life. But it shapes our lives silently and without oversight and reprieve.
As Maryland law professor Frank Pasquale writes in his acclaimed new book, The Black Box Society: “Google is not really a competitor in numerous markets, but instead serves as a hub and kingmaker setting the terms of competition for others.” For Pasquale, the solution lies in greater transparency. “Google’s secrecy keeps rivals from building upon its methods or even learning from them,” he writes. “Missing results are an ‘unknown unknown’: users for whom certain information is suppressed do not even know that they do not know the information.” The irony of the situation is that Google knows so much about us, and we know so little about it.
The transparency conundrum
The core of the problem with competition law is that it seems a poor and ill-adapted game of mudslinging, and it is only peripheral to the real problem: power. At best, the European Commission’s initiative may require some marginal reconfiguration of Google’s algorithms and presentation of results, and possibly some payouts, with no equivalent benefit in engendering the flourishing of new innovation.
Very few policymakers have cottoned onto the broader implications of what society loses when we lose variegated search strategies, information sources, and publicly-owned datasets that permit a variety of services to flourish, favouring instead the creation of black box systems, tailored to predicting collective behaviours. Such predictive capabilities, at scale, are not only harmful in terms of how they dictate economic winners and losers, but in terms of the potential for price-discrimination and, worst of all, impairment of individual choice, autonomy and free will. The total opacity of search and its interventions make manipulation invisible from the point of view of users. All users see is the supposedly objective final results, not the interventions by the gatekeeper.
That’s why another initiative this week, likely to be overshadowed by the EC’s announcement, shows particular promise. Three members of the French senate, led by Catherine Morin-Desailly, one of the fiercest critics of mass surveillance and tech monopolies, have a proposal for Google to make its search algorithms (or the communications that inform it) transparent to the French telecomms regulator, Arcep, a body of 170 digital experts. While Google will likely claim that its algorithms are so complex that even its own engineers do not understand their Heath Robinsonesque machinations, the bold French proposal recognises that Google search did not simply emerge of its own accord. Algorithms are human creations, and they need to serve human needs.
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