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Google: 'We're just trying to be accurate...'

Google, well, sees thing differently. The company argues that whether its algorithms are objective or subjective has no impact on antitrust discussions. Company competition lawyer Kevin Yingling tells The Register that it began using the "opinion" language simply because it wanted to be more precise. "It's just a more accurate description of the way things work," he says. "This isn't driven by our antitrust analysis. We're just trying to be more accurate in how we convey how the results are determined."

According to Cutts, Google changed its documentation in 2007 after a pair of federal courts ruled that the company's search results were protected under the First Amendment to the US Constitution, which covers "free speech." When we first asked Google about the documentation change, it pointed us to the same court cases. Both involved companies that sued Google over their placement in Google's search ranking: KinderStart, which ran a website for new parents, and SearchKing, which ran a search engine and ad network.

"PageRanks are opinions - opinions of the significance of particular Web sites as they correspond to a search query," the SearchKing decision said.

"The court simply finds there is no conceivable way to prove that the relative significance assigned to a given Web site is false. Accordingly, the court concludes Google's PageRanks are entitled to full constitutional protection."

Cutts says that Google changed its documentation in direct response to the Kinderstart ruling. "Even though Google won the case, we tried to clarify where possible that although we employ algorithms in our rankings, ultimately we consider our search results to be our opinion," he said. "That single point, which courts have agreed with, proves that there's no universally agreed-upon way to rank search results in response to a query. Therefore, web rankings (even if generated by an algorithm) are are an expression of that search engine's particular philosophy."

Google rankings are undoubtedly protected under the First Amendment. "Google is allowed to inject its own views into the discourse, when it acts as an organization of the press," San Jose law professor and tech law blogger Eric Goldman tells The Reg. "It's allowed to operate its press free from government oversight." What's more, he says, Google is protected under Congressional law: 47 USC 230. But this doesn't address antitrust issues.

"A lot of the debate over whether Google can set its algorithms as it wants or not has been resolved statutorily [in 47 USC 230]," Goldman says. "We have a statute that addresses this particular issue. It doesn't address the interplay between editorial discretion and antitrust...[but] Congress said 'we want people to make whatever decisions they want to restrict objectionable material and we're not going to second guess that.'"

Like Goldman, Google argues that its search engine is protected in the same way a newspaper is protected. "The newspaper analogy is a pretty strong one in a lot of ways," Google competition lawyer Kevin Yingling tells us. "It's our content, what we think is relevant, either in websites or actually delivering content to users on that first page. And then we sell advertising against that, which is similar to what a newspaper does."

This is true. But again, Google goes still further. Calling algorithms your "editorial judgment" is one thing. Calling them "opinions" is another. What happens if the search engine is used to harm competition? Now that Google has so strongly backed the opinions idea, are courts and regulations more likely to come down on Google for antitrust violations? These are questions worth asking – especially when you consider how doggedly the company has hidden behind the objectivity argument in the past.

Google says the objectivity stance was never meant to mislead. "I think the legacy of us referring to our results as objective really plays into the response we had to the way some search engines used to present results, where they would present paid results within their search results," Kevin Yingling says. "Our promise never to do that really drove a lot of the conversation about referring to this as objective."

But there's a reason John Battelle, a longtime Google watcher, was so shocked when Google pulled out the opinion talk. And the timing was doubly shocking. It came just days after the European Union said it was officially investigating Google for antitrust violations. Randy Picker, an antitrust scholar at University of Chicago, tells The Register that in the context of antitrust law, Google's new opinion language isn't that important. But he sees where it might sway the, well, opinion of regulators.

"It was such a sharp example of Google tweaking their algorithm in response this New York Times story," he says. "All of the sudden, it looks a lot more hand massaged than it did before. To the extent that people think they're doing [uncompetitive] things with the algorithm, that example is going to come back and people are going to pay attention to that."

The First Amendment doesn't trump antitrust law. "The posture of the Supreme Court has been that the First Amendment operates subject to the general laws of the land, one of the them being the antitrust statute. " Picker says. We would also add that in Europe, the First Amendment doesn't exist. ®

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