Should Ohio Regulate Search Results?

Should Ohio regulate Internet search results?  Ohio Attorney General Dave Yost said it could happen sometime soon. But before he proposes a law to control what comes up when you Google, Yost asked the public to weigh in with their opinions on search results.

Let’s look at the issue

The Problem

Companies like Google and Yahoo place paid advertisers at the top of search results. They also favor their own products.  For example, if you Google an email service, you’ll get Gmail. Put in a search for a smartphone and you might see an Android device at the top of the list.

When search engines favor an advertiser you won’t see the most popular or the closest result to what you looked for, you’ll see the highest bidder. There have been cases where fake tech support companies have paid to place higher in search results than the actual tech support numbers for companies like Apple and Microsoft.

Search engines are also known to censor results for certain hot topics or websites they don’t approve of.

The Question

“Should Google, for example, be able to put its own products above everybody else’s products in the search results? We want to know if you think that kind of thing is unfair or deceptive, or if you’re OK with it,” Yost said.

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Yost posted a request for comment to get the public’s opinions about the practice of steering consumers to search for results that boost profits for companies that own the platforms.

Ohio law prohibits “unfair or deceptive sales practices.”  Yost wants the public to tell him if they feel search engine results fall under that umbrella.

20 Questions

Here are the questions Yost needs answers to:

1. Is a Proposed Rule needed? Why or why not?

2. What is the appropriate definition of “search engine” and “search provider” for purposes of a Proposed Rule?

   1. What terms are inappropriate to include in the definition of “search engine” that may otherwise normally be included?
   2. What terms are inappropriate to include in the definition of “search provider” that may otherwise normally be included?

3. How, if at all, is the structure of SERPs unfair or deceptive?

   1. Specifically, how are the structures unfair or deceptive as related to integrating or prioritizing Owned Products or Services?
   2. Specifically, how are the structures unfair or deceptive as related to displaying a paid-for advertisement in positions or locations that confuse and/or prioritize those results over that of natural search results.

4. What, if any, identifiable or quantifiable consumer harm is caused by search engines giving preference to Owned Products or Services?

   1. How can this Proposed Rule adequately address the harm?
   2. Are there market-based solutions that reduce or eliminate the need for potential regulation?
   3. Is there a regulatory structure that could reduce or eliminate the harm without significantly hampering search result quality or interfering with innovation?
   4. Would the benefit of a Proposed Rule outweigh the current harm to consumers?

5. Should a Proposed Rule (or a similar rule) govern the population of Owned Products or Services by non-search engine websites, for example, by third-party selling sites?

   1. If so, who should the rule govern?
   2. If so, for what reason(s)?
   3. If not, for what reason(s)?

6. Should a Proposed Rule (or a similar rule) govern the population of non-Owned Products or Services that are paid advertisements from which the search engine derives revenue?

   1. If so, for what reason(s)?
   2. If not, for what reason(s)?

7. Should Owned Products or Services be subject to the same underlying algorithmic process as all other searches?

   1. Why or why not?
   2. Is it ever appropriate to give algorithmic preferences or to evaluate outside of the normal process for an Owned Product or Service?

8. Should a Proposed Rule apply to preferencing a “comparison shopping service” owned or operated by a search engine in which the search engine produces results for a specific category of products, services, or information grouped together in one result to allow for comparison shopping by aggregating data from different platforms?

   1. Is it relevant if inclusion in comparison shopping services is based on paid inclusion in which a third-party must pay the search engine to be included?
   2. Is it relevant if inclusion in comparison shopping services is based on the third-party paying the search engine if a user clicks through to its website via the comparison-shopping service result?
   3. If the answer to either of the above is yes, what method of disclosing the relationship would remedy any consumer harm.

9. What evidence, if any, exist surrounding consumers’ cognition, perceptions, preferences, or the like regarding the population and placement of Owned Products or Services?

10. Should all Owned Products or Services be treated in the same manner?

    1. If not, which Owned Products or Services should be more strictly regulated?
    2. If not, which Owned Products or Services should be less strictly regulated
    3. What evidence, if any, exists for your reasoning? Does this evidence show consumer harm?

11. How, if at all, should a Proposed Rule guard against future changes in technology?

    1. Can the rule be written in a way that it would be applicable and relevant to future technology changes?
    2. Can the rule be written in a way that does not regulate internet search technology itself or harmfully interfere with innovation in the marketplace?

12. Are additional disclosures necessary to inform consumers how search results are populated?

    1. Is disclosure an appropriate alternative to a prohibition or to regulating the layout or structure of SERPs?
    2. What should the parameters of effective disclosures look like?
    3. Are disclosures necessary in addition to a prohibition?
13. How is regulating SERPs similar to or different from regulating online advertising such as car advertisements?
14. Would a regulatory solution that requires the presence of a toggle switch that has the ability to turn off or hide results other than natural search results be feasible, workable and/or productive to achieve the intended purpose?
15. What benefits would a Proposed Rule have for consumers? What evidence do you have or know of that shows these benefits?
16. What harms would a Proposed Rule have for consumers? What evidence do you have or know of that shows these harms?
17. What benefits would a Proposed Rule have for search engines? What evidence do you have or know of that shows these benefits?
18. What harms would a Proposed Rule have for search engines? What evidence do you have or know of that shows these harms?
19. What benefits would a Proposed Rule have for small businesses? What evidence do you have or know of that shows these benefits?
20. What harms would a Proposed Rule have for small businesses? What evidence do you have or know of that shows these harms?

Consumer Protection

Yost said the feedback from consumers will help his office decide if new laws are needed to regulate search engines in Ohio.