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Wednesday, May 23, 2012

Adam Thierer response to the online search symposium

Posted by Adam Thierer

I enjoyed the entries in this symposium and learned something from each of them. I have a few things to say in response to both Frank Pasquale and Eric Clemons and their sweeping indictments of not just Google but seemingly the entire modern information economy.

Everywhere they look, it seems, Pasquale and Clemons see villainy. Someone completely alien to the modern online ecosystem would read Pasquale’s description of it -- “digital feudalism,” “absolute sovereignty,” “opaque technologies,” “leaving users in the dark,” etc., etc. -- and likely conclude that a catastrophe had befallen modern man. Of course, Pasquale’s narrative is missing any reference to the unparalleled expansion in the stock of knowledge and human choices that has been made possible by Google and the others companies he castigates (Apple, Facebook, Twitter, and Amazon). Meanwhile, Clemons wants to group Google in with supposed Wall Street robber barons as well as characters from Sinclair’s “The Jungle.” It’s all a bit much.

Regardless, what about those high-tech feudal lords, especially Google? Can we keep their market power in check without extreme steps? It goes without saying that neither Pasquale nor Clemons places much faith in the sort of dynamic, disruptive competition and creative destruction (which I documented in my entry in the symposium) as being an effective check on market behavior. But their skepticism goes well beyond that and transcends tradition antitrust analysis. They seem to assert that we just can’t trust large digital intermediaries at all, primarily because they are profit-maximizers. Clemons suggests that paid search shouldn’t even be permitted, which is a bit like saying ad-supported, for-profit newspapers should have been forbidden or regulated long ago.

Their skepticism about concentrated power fades quickly, however, when it’s the concentrated power of government that will be calling the shots in the digital economy. Regulators, Pasquale says, will be able to devise forms of redress that “help[] us confront issues of discrimination, malfeasance, nonfeasance, and technological due process in a rapidly changing online environment.” He suggests transparency mandates, external regulatory oversight, and that something akin to a mandatory right of reply for search results are all needed. Meanwhile, Clemons wants full-blown structural separation of Google into three or four different firms.

Pasquale and Clemons don’t bother addressing the trade-offs associated with their proposals. They apparently want us to imagine that these proposed remedies are innocuous and costless. They also don’t seem to give much weight to the critiques set forth by Marvin Ammori, James Grimmelman, or Dan Crane regarding the incoherent and potentially counter-productive nature of “search neutrality” remedies. Clemons also doesn’t seem at all worried about the forgone benefits of vertical integration, even though those benefits can be substantial in the field of search. The rich content and specialized integrated services that Google has been able to freely offer consumers deserve greater consideration before imposing the nuclear option of structural separation.

That last point is essential. We can’t divorce this discussion from the real-world evidence of just how well consumers have been served by the search market today. That begins with the fact that consumers don’t pay a penny for the cornucopia of content or expanding universe of constantly innovating services that they enjoy currently. So, to repeat what I said in my initial entry, the traditional goals of public utility regulation -- universal service, price competition, and quality service -- are already being achieved quite nicely without intervention. That makes the case for search regulation even harder to sustain.

Finally, let’s just talk about the practicality of all the regulation they advocate. Pasquale asks: “Is it too much to ask for some entity outside Google to be able to ‘look under the hood’ and understand what is going on in plausibly contested scenarios?” Well, perhaps it is! The respected blog SearchEngineLand has estimated that approximately 34,000 searches are conducted per second (or 2 million per minute; 121 million per hour; 3 billion per day; 88 billion per month). That’s a lot of activity for regulators to keep tabs on. And Google’s search algorithm is constantly being tweaked-- more than 500 changes each year -- to offer websurfers improved results and enhanced security against spammers and other malicious activity. Having regulators constantly “looking under the hood” and trying to adjust those results via a political process would likely slow innovation to a crawl. It would also open up the process to a great deal of gaming by other parties -- including spammers and scammers. Moreover, the dangers of political gaming of search should not be discounted. Once policymakers have the sort of authority over search that Pasquale and Clemons recommend, the danger of political influence and regulatory shenanigans both grow exponentially.

In the end, I believe the combination of public pressure, social norms and, most importantly, ongoing innovation and creative destruction, can do a better job of protecting consumer welfare than the sort of sweeping regulatory interventions that Pasquale and Clemons advocate. We should be patient and see how this marketplace develops instead of engaging in rash interventions.

http://lawprofessors.typepad.com/antitrustprof_blog/2012/05/adam-thierer-response-to-the-online-search-symposium.html

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Comments

Hello Adam,

Although Google's power might be at risk from creative destruction, the fact that other monopolists have faded falls short of demonstrating the magnitude, or even existence, of that risk for Google. If you think that Pasquale and Clemons are too quick to see villainy, is there any Google conduct that would look like villainy to you? That is, is there anything they could do with search results that you think could constitute an antitrust violation?

Mark

P.S. If we're objecting to rhetoric, how about "cabal" in your post?

Posted by: Mark Patterson | May 23, 2012 12:05:20 PM

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