After Search Neutrality: Drawing a Line Between Promotion and Demotion

The Federal Trade Commission’s (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google’s critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn between promotion of a search engine’s own properties and demotion of rival properties. Although distinctions of this kind are inherently slippery, in this case the distinction should serve well enough. As of this writing, the wild card remains the European Commission, which may yet upset the applecart. * Associate Dean, Faculty & Research, and Frederick Paul Furth, Sr. Professor of Law, University of Michigan. 1 Statement of the FTC, In the Matter of Google, Inc., F.T.C. File No. 121-0120 (Jan. 3, 2013), available at http://www.ftc.gov/os/caselist/1210120/130103googlemotorolastmtofcomm.pdf. 2 See Marvin Ammori & Luke Pelican, Competitors’ Proposed Remedies for Search Bias: “Neutrality” and Other Proposals, 15 No. 11 J. INTERNET L. 1 (2012); Daniel A. Crane, Search Neutrality and Referral Dominance, J. COMP. L. & ECON. (2012); Daniel A. Crane, Search Neutrality as an Antitrust Principle, 19 GEO. MASON L. REV. 1199 (2012); Geoffrey A. Manne & Joshua D. Wright, If Search Neutrality is the Answer, What’s the Question?, 2012 COLUM. BUS. L. REV. 151 (2012). I/S: A JOURNAL OF LAW AND POLICY FOR THE INFORMATION SOCIETY 398 I/S: A JOURNAL OF LAW AND POLICY [Vol. 9:3