Let’s make Google a public good that treats everyone fairly

A lawsuit in Ohio is seeking to convert Google into a public utility

American law recognises that some critically important businesses must accept all customers and treat everyone fairly because they are not easily or economically efficient to duplicate — think railroads, electricity providers and telephone companies.

As Ohio’s attorney general, I went to court last month asking for a judicial declaration that Google has evolved into such an entity: a public utility of internet search.

Google is ubiquitous. More web traffic goes to Google and YouTube, a subsidiary of Google, than the other top 50 websites combined. And it’s not just internet traffic: Google dominates internet search, cornering nearly 90 per cent of the US search market, and even more globally. Bing, the runner-up in internet search, claims a mere 6 per cent of the US market and 2 per cent globally.

Antitrust action

More than 30 states, including my own, have joined in a bipartisan antitrust action against Google. But, separately, Ohio is pursuing Google under the common law of public utility — a tactic that I urge other states to consider.

Should Ohio prevail in its lawsuit, there will be no heavyhanded “Mother May I?” antitrust regulation in which the government tells Google how to run its business or how to write its algorithms. Nor, unlike antitrust law, does Ohio’s suit seek to reduce the number of Google users. We are not even asking for monetary damages — just a simple declaration that, under the law, Google is a public utility, or more generally, a common carrier.

Once Google is declared a common carrier, the average web user’s experience of search would, for the most part, remain the same. That’s largely because, when you use Google to search, you’re not the customer — you’re the product. Google uses your detailed personal information for targeting ads.

Prioritises own products

The subtle common-carrier changes for users will be positive, such as showing you the results you requested instead of being steered to Google products. My lawsuit alleges that Google prioritises its own products and platforms in search results. According to the market research company SparkToro, at least 65 per cent of Google searches in 2020 were “zeroclick searches” — that is, the consumer never left Google when conducting a search. And an investigation by The Markup found that a search for, say, flights, first brings up integrated results from Google Flights — while competitors such as Travelocity and Orbitz can be shut out.

As a public utility, Google search would have to give others a better shot. Those searching would get results that are not skewed to Google, and the marketplace would be a bit more competitive.

Once a court declares Google a public utility, the marketplace itself would provide the guard rails.