Google Liability under Title II

In 2015, in a vote along partisan lines, the FCC reclassified the Internet to be a telecommunication service subject to Title II of the 1934 Communications Act (the infamous FCC-15-24 Obamanet order).  This was done under the pretext of net neutrality, but had nothing to do with net neutrality.  Google participated in the preparation of this order, was fully aware of it, did not object.  Rumor has it that Eric Schmidt personally wrote parts of the order, and broadened it. Then Google took full advantage of this reclassification and ignored its obligations stemming from it.  Later, Google rabidly defended this order and put its brand and the shareholder’s money behind the Battle for the Internet waged by the hard Left against Trump administration, attempting to repeal that order.

The Communications Act of 1934 was intended to regulate communications carriers that existed then.  Originally, phone networks were manually switched.  A caller would call a switchboard operator employed by a phone company and explained to whom or what he wanted to speak to. The operator would do a search, figure out the exact destination intended by the caller, and connect them using the switchboard.  It should be stressed that the caller did not always identify the recipient by name.  Frequently, the caller would state the intent, like a type of business he wanted to reach, and the operator either provided him with a choice of recipient, or decided herself (1).  By 1934, this system was partially supplemented by automatic switchboards that allowed the caller to dial a number and be connected automatically.

In many respects, FCC-15-24 knocked the U.S. Internet back to the phone network of 1934.  We connect to some websites by typing in their names or IP addresses.  But in many cases, we don’t know the names of the websites we want to visit.  This is where Google comes into play in the role of the switchboard operator.  It receives a verbal description of the desired destination and returns an ordered list of links that allows users to connect with a click of the mouse.  Sometimes, Google connects the user to a destination of its choice without additional approval (the button I’m Feeling Lucky).  To recap: under the Title II of the Communications Act of 1934, Google search performs the technical function of connecting the user to the desired destination.  The hyperlinks in search results are technical connections. They cannot be considered any kind of speech.  Moreover, Google Chrome browser encourages users to type search terms in the address bar, confirming the impression that Google Search connects its user to the destination of his or her choice.

I see no reason why the laws that ruled phone companies pursuant to the Communications Act of 1934 should not apply to Google.  Could Bell discriminate in placing calls against businesses it did not like?  Could Bell order operators to connect callers asking for conservative newspapers to liberal ones? Could Bell route callers asking to speak to scientists skeptical of climate alarmism, to an outlet of climate alarmists, specially dedicated to smearing such scientists?  I doubt so.  But this is exactly what Google does all the time.  When one searches for skeptical science – Google connects the user to the infamous, a site created by “self-employed” (i.e., unemployed) Australian cartoonist with exactly that intent.  Could Bell instruct its operators not to connect to certain persons, whom it did not like, but instead to defame and ridicule them to the callers?  No.  But Google frequently does that to climate realists through its information boxes that appear above or on the side of the search results.

Google is likely to be liable to the users of its search for intentionally misleading or biased search results.  FCC-15-24 explicitly confirmed that Google users pay to their ISPs for transmission of Googles and other content providers’ content.  The current article raises possibility that since reclassification of the internet under Title II of the 1934 Telecommunications Act, Google is also liable to the owners of libertarian, conservative, and climate realist websites that have been nearly blacklisted or discriminated against by Google.  Individual contributors might have standing as well. I will be surprised if there was no litigation regarding manual switching practices of the phone companies, and surprised even more if the precedent says that connecting callers is a protected speech of a telecommunication company.  By the way, individuals and organizations libeled by Google search results might also have standing to sue for libel.  The same logic applies to Microsoft Bing. Twitter tweets are like telegrams, and Twitter might be considered a common carrier under the Title II regime.

A tangentially related note:  As somebody who arrived in this country as an adult and became interested in politics only about a couple of years ago, I am continuously surprised by a strange habit of public attitude: everything the Left is doing, short of throwing a Molotov cocktails, is treated as a protected speech.  Everything that normal citizens do, from advocating scientific or technical views to talking to their co-workers to buying political ads is either fraud, harassment, or violation of some other laws. We should get rid of this habit.

P.S. Unhinged leftists, incited by the fake news and the “tech” cartel, threatened Ajit Pai, FCC Chairman appointed by Trump, at his home, calling his children (4-year-old daughter and 6-year-old son) by their names (see this Twitter post. Notice the word murdered is underscored).

Updated since the initial publication on November 28, 2017.