Ohio Attorney General Dave Yost says a Delaware County Common Pleas Court has scheduled a trial for his "first-of-its-kind" lawsuit claiming Google is a common carrier subject to government regulation and should be compelled to produce "fairer results." But that trial isn't coming anytime soon.

The court has set May 14, 2024, to hear Ohio's complaint, which was filed in June 2021, so the wheels of Justice aren't exactly keeping up with the speed of high-speed internet.

The suit says that Google needs to be treated as a common carrier because it dominates internet search domestically and globally and, as a result, there are high barriers of entry to its competitors.

That includes preventing Google from self-preferencing its search results.

The suit says that the more Google is used, the better its search becomes, and the more entrenched its market power becomes in turn.

"Because Google Search is the most used search engine, its algorithms are the most refined and is perceived to generate the most relevant results," the suit says. "And because Google Search is perceived to deliver the best search results, it becomes more used in the future, further refining the search relevancy algorithms. Thus, Google’s dominant market position allows it to continue to refine its search algorithms to render Google with a competitive advantage over other search engines, leading to more market dominance by Google Search."

The suit says it is not arguing that dominance is bad, only that it is a fact, and one that the government needs the power to address through regulation, and should be able to because search is properly classified as a common carrier/utility under Ohio law.

It does suggest Google is using that dominance unfairly by intentionally disadvantaging competitors and favoring Google products over organic search results.

Yost says the suit is necessary to let consumers know Google is a common carrier under Ohio law, and to make sure that Google Search "does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce."

"By manipulating search results to self-preference its own products, Google is tilting the playing field against consumers and against emerging competitors,” Yost said. “It's time to bring those unfair practices to an end," says Yost.

Back in May 2022, Delaware County Judge James Schuck refused Google's request to throw out the suit, signaling he thought a case might be made for common carrier status. ■

Google has asked an Ohio court to dismiss a suit filed by the state's attorney general that attempts to designate the company a common carrier. Instead, said Google, it is a publisher whose responses to user queries are "editorial decisions" protected by the First Amendment and that the state can't try to tell it what results it must display.

That distinguishes Google from social media giants arguing vociferously--in order to preserve their Sec. 230 immunity from civil liability over third-party content--that they are not publishers.

In seeking the dismissal, Google told a Delaware County (Ohio) civil (common pleas) court that the company does not bear even a passing resemblance to the definition a common carrier--an entity that transports goods or services--including telecommunications, water or electricity--for a fee.

Google said that the suit was being brought because "most Ohioans who seek information on the internet prefer to use Google rather than other internet search services." It said that is no more valid a reason under law than "to declare Fox News, the New York Times or Walmart a 'public utility' because most people in a particular town prefer to get their news or groceries from them instead of someone else."

Google said its search is not a public service, or a service of public concern, that it is not hired to carry content from one person to another, that there is nothing "common" about the information it presents and that the way it responds to queries is protected by the First Amendment.

"Like its numerous competitors, Google exercises its editorial discretion in Google search to provide users with information that Google believes will be responsive to the users' query. That service is not one that has ever been deemed the type of 'essential service' that Ohio or anyone else has regulated as a public utility--such as electricity, gas, water or garbage disposal."

Google also that for the state to try and tell it what search results it has to display is unconstitutional. "Courts have consistently held that constitutional protections apply to information provided by online services like Google and specifically safeguard Google's judgments about what information it chooses to present and how Google chooses to organize and display it."

Google points out that no Ohio court has ever deemed search to be an essential service that can be regulated as a public utility.

Back in June, Ohio Attorney General Dave Yost, a Republican, filed on behalf of the state what his office was billing as a "landmark" lawsuit to have Google declared a public utility so it can be held to nondiscriminatory access regulations when it comes to showing search results.

Also Read: No Free Regulatory Ride for Google, Others

The Ohio suit is not seeking any redress for Google's dominant market position, saying it is not arguing whether that is good or bad "in isolation." Instead, it is focused on "establishing that Google’s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law."

The suit references Supreme Court Justice Clarence Thomas' comment in writing on a First Amendment decision by the court. Thomas suggested that “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated,” then used Google as an example of one whose dominance buttresses the analogy.

But Google counters that dominance can't justify the common carrier tag. "Ohio's complaint mistakenly assumes Google Search is a common carrier or public utility because Ohioans choose to use Google Search" rather than its competitors. "Under Ohio law," it said, "common carriers charge a fee to deliver a standardized services, and public utilities are regulated by a set of state regulations. Google has none of these attributes, and there is no basis in the law to conclude otherwise."

ISPs have spent most of two decades fighting the urge from Democrats and some in Silicon Valley to define internet access as a common carrier service and impose some version of utility style regulation on ISPs, but now edge provider giants are getting a taste of their own medicine.

Ohio Attorney General Dave Yost, a Republican, has filed on behalf of the state what his office was billing as a "landmark" lawsuit to have Google declared a public utility so it can be held to nondiscriminatory access regulations when it comes to showing search results.

“Google uses its dominance of internet search to steer Ohioans to Google’s own products--that's discriminatory and anti-competitive,” Yost said. “When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access," said Yost of the suit, which was filed in a Delaware County, Ohio, civil (common pleas) court.

Also Read: No Free Regulatory Ride for Google, Others

The suit says it is not seeking redress for Google's dominant market position, saying it is not arguing whether that is good or bad "in isolation."

Instead, it is focused on "establishing that Google’s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law."

The suit references Supreme Court Justice Clarence Thomas' comment in writing on a First Amendment decision by the court, that “[t]here is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated,” then used Google as an example of one whose dominance buttresses the analogy.

Ohio clearly agrees. 

"Ohio has an interest in ensuring that Google, its users, and the entities whose information Google carries are aware that Google Search is a common carrier under Ohio law. Ohio also has an interest in ensuring that as a common carrier Google Search does not unfairly discriminate against third party websites; that Google carries all responsive search results on an equal basis; and that it provides the public with ready access to organic search results that the Google Search algorithms produce," the suit says.

Also Read: Algorithm Bill Introduced

The suit goes beyond just seeking the common carrier status for Google to asserting that under that public utility definition, Google must be prevented from self-preferencing in its results, at least in Ohio.

Republicans have been arguing for a while that edge providers use their power to preference content that squares with their political world view--which they say means censoring conservative content--or that better boosts their bottom lines.

Free State Foundation President Randolph May said in a blog post that while he has issues with Big Tech as well, he is not ready to endorse treating edge providers like common carriers. 

An association representing edge provider powerhouses met with FCC chair Ajit Pai Tuesday (April 11) to argue for preserving the FCC's Title II-based Open Internet order. That comes as Pai is pondering how to roll back Title II, including by potentially having ISPs sign on to voluntary Open Internet principles that would then be enforceable by the Federal Trade Commission.

The Internet Association, whose members include everyone from Amazon to Zenefits (that would be Google, Facebook, ebay, Netflix, Microsoft, Yahoo and a laundry list of others) met with Pai and top staffers to argue for retaining the rules, according to the association.

"IA continues its vigorous support of the FCC’s Open Internet Order, which is a vital component of the free and open Internet," the tech companies told Pai, according to an ex parte document filed with the FCC and confirmed by a spokesperson for the group. "The Internet industry is uniform in its belief that net neutrality preserves the consumer experience, competition and innovation online. In other words, existing net-neutrality rules should be enforced and kept intact."

That is unlikely given that the current FCC Republican majority opposes Title II reclassification and Pai has made it clear he thinks net neutrality can be preserved without classifying ISPs as common carriers under Title II.

The IA argues that the Title II did not have the adverse impact on broadband investment ISPs have argued was the case. Former FCC chair Tom Wheeler, who motormanned the Title II order with an assist from President Obama, has also said the ISP argument about depressing investment was a red herring.

While it had Pai’s ear, the IA also argued that there was a qualitative difference between edge providers and ISPs that justified different treatment of broadband privacy.

It said that includes the fact that Internet access service have “higher financial, legal, and technical market entry barriers as well as high customer switching costs when compared to edge provider markets” and that “edge providers have more limited visibility into online practices and consumer Information,” a conclusion that it said the FTC has also drawn in concluding that ISPs are “in a position to develop highly detailed and comprehensive profiles of their customers – and to do so in a manner that may be completely invisible.”

Congress two weeks ago nullified the FCC’s broadband privacy rules, which required opt-in consent from ISP subscribers for sharing their personal information with third-party marketers that edge providers can share without that opt-in consent.