Spurred by Clarence Thomas, Ohio AG wants Google declared a public utility

The state of Ohio sued Google today in an unusual complaint that seeks a legal declaration that Google is a common carrier and public utility under Ohio law.

“Google uses its dominance of Internet search to steer Ohioans to Google’s own products—that’s discriminatory and anti-competitive,” Ohio Attorney General Dave Yost, a Republican, said when announcing the lawsuit. “When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access.”

The complaint was filed in the Common Pleas Court of Delaware County in Ohio. The lawsuit does not seek monetary damages but would impose certain nondiscrimination obligations on Google.

Yost’s requested declaration would say that Google “has a duty to carry content from other sources without unfair discrimination as compared to comparable Google content.” The suit also asks for a permanent injunction prohibiting Google “from prioritizing the placement of Google products, services, and websites on Results Pages from Google Searched [sic] in Ohio without providing equal opportunities for prioritization to non-Google entities.”

Clarence Thomas influence

“Ohio is the first state in the country to bring such a lawsuit,” Yost’s announcement said.

The lawsuit was influenced by Supreme Court Justice Clarence Thomas’ recent concurring opinion in which he argued that Twitter and similar companies could face First Amendment restrictions (even though they are not government agencies) and that free-speech law shouldn’t necessarily prevent lawmakers from regulating those platforms as common carriers.

“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers,” Thomas wrote. “Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way.”

Twitter’s banning of Donald Trump for inciting violence featured prominently in Thomas’ opinion, but he also wrote that common-carrier regulation could extend to Facebook and Google.

Yost’s lawsuit quotes from the part of Thomas’ opinion where he wrote, “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated… The analogy to common carriers is even clearer for digital platforms that have dominant market share… Google search—at 90 percent of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results.”

Google: Don’t treat us like an electric company

Yost’s announcement argued that “Ohioans are harmed by Google because they cannot make the best choices if they don’t get all of the information. For example, if someone searches for a flight and Google returns its own presentation of search results to steer the person to Google Flights, the person doesn’t see offers from competitors such as Orbitz and Travelocity.”

Yost’s requested prohibition on Google prioritizing its own products, services, and websites above competitors on search pages would “extend to advertisements, enhancements, knowledge boxes, integrated specialized searches, direct answers and other features.”

Google said in a statement that “Google Search is designed to provide people with the most relevant and helpful results. AG Yost’s lawsuit would make Google Search results worse and make it harder for small businesses to connect directly with customers. Ohioans simply don’t want the government to run Google like a gas or electric company.”

Google also said, “This lawsuit has no basis in fact or law,” and that Google search doesn’t have any of the attributes of traditional common carriers such as railroads, phone companies, and energy providers. Those attributes include providing a standardized delivery service for a fee using public assets like rights-of-way, Google said.

Lawsuit isn’t “obviously right or wrong”

Yost’s lawsuit says that, under Ohio law, “An entity may be characterized as a public utility if the nature of its operation is a matter of public concern and if membership is indiscriminately and reasonably made available to the general public.” Further, the lawsuit said that a corporation’s services reach “public utility or common carrier status when it serves a substantial part of the public in a way that makes its methods of operations a matter of public concern, welfare, and interest.”

Yost’s lawsuit also said: “Pursuant to Ohio Revised Code Chapter 2721, the State is entitled to a judgment declaring Google’s Google Search to be classified as a common carrier and/or public utility, which subjects Google to the heightened duties that are required of such entities under common law.” The lawsuit also said that an entity can be a utility under Ohio law even if it is not regulated by the state Public Utilities Commission.

The lawsuit is novel but not “obviously right or wrong,” wrote Harold Feld, senior VP of consumer-advocacy group Public Knowledge and a longtime telecom lawyer with expertise in common-carrier law.

“I think Google’s best argument is that to be an effective search engine, it cannot treat all searchers and all data indifferently. It must ‘know’ facts about the individuals and make choices among the data as to what is responsive,” Feld wrote. “This sort of individualized treatment is usually the opposite of ‘indifferently’ or ‘indiscriminately’ (the two terms generally used to describe common carriers).” Feld stressed that the outcome “will depend on how Ohio interprets that phrase under common law.”

Google could ultimately appeal any adverse decision to a federal court and claim that it should be preempted by US law.

Dispute over “captured” clicks

Yost’s lawsuit also targets “captured clicks,” or “searches that ended either on the search engine result page or where a user clicked to other Google platforms, such as YouTube, Google Flights, Google Maps, Google News, Google Shopping, and Google Travel.” The complaint asks for a permanent injunction prohibiting Google “from including features on Results Pages from Google Searches conducted in Ohio that promote captured-click searches, without providing access to similar features to non-Google entities.”

Yost’s lawsuit said that about half of nonmobile Google searches in Ohio in 2019 were captured-click searches, while over 55 percent of mobile Google searches were in that category. Google has previously disputed claims that these searches, also called “zero-click,” make up the majority of Google searches. Google says that such claims rely “on flawed methodology that misunderstands how people use Search.”

Google wrote in March 2021:

People don’t always know how to word their queries when they begin searching. They might start with a broad search, like “sneakers” and, after reviewing results, realize that they actually wanted to find “black sneakers.” In this case, these searches would be considered a “zero-click”—because the search didn’t result immediately in a click to a website. In the case of shopping for sneakers, it may take a few “zero-click” searches to get there, but if someone ultimately ends up on a retailer site and makes a purchase, Google has delivered a qualified visitor to that site, less likely to bounce back dissatisfied.