• by Wendy Davis  @wendyndavis, February 27, 2024

Ohio Attorney General Dave Yost's attempt to declare Google's search engine a “common carrier” service, if successful, would prove “unequivocally harmful” to businesses in the state, the Ohio Chamber of Commerce argues.

“Regulating Google, as the state seeks to do, poses a threat to Ohio business and the commerce Ohio businesses create,” the organization says in a friend-of-the-court brief filed last week with Delaware County Common Pleas Court Judge James Schuck.

The organization is backing Google's request for judgment in its favor in a lawsuit brought by Yost, who argues that Google's search engine should be regulated as a “common carrier” service, comparable to a telephone or electric company.

“The stakes reach beyond this case, this county, and this provider,” the state Chamber writes.

“There are no two ways about this -- the state asks this court to issue a decision that is unequivocally harmful to Ohio's businesses,” the group adds.

The Ohio battle over Google's search engine dates to 2021, when Yost alleged in a lawsuit that the company should be considered a common carrier because it dominates the online search market. Common carrier status could come with numerous requirements, including ones that would prohibit Google from giving preferential treatment to its own products or services in the search results.

Yost recently sought summary judgment, arguing that Google meets the Ohio definition of a common carrier because it's available to all web users, garners ad revenue by transporting “goods” -- meaning information -- and provides services that concern the public.

Google also sought summary judgment in its favor, arguing to Schuck that a ruling against it would mark an expansion of the definition of “common carrier” in ways that could other web companies like Bing and Yelp, newspapers like The Columbus Dispatch and brick-and-mortar businesses like supermarkets.

“Each is open to the public and provides consumers with information or goods, some of which may be sourced from third parties, just as Google Search does,” the company wrote in papers that were unsealed earlier this month.

The company also argued it has a First Amendment right to exercise editorial judgment over the search results page.

“Just as a newspaper editor must choose what information to include in the paper, what to put on the front page, and in what order, a search engine must decide what information to include in its search results, what to put on the first page of the results, and in what order,” Google wrote.

The Ohio Chamber of Commerce says in its friend-of-the-court brief that Google's ability to wield control over search results helsp businesses.

“Search curation is an evolution of the marketplace, not a fatal flaw," the organization writes, adding that curation "allows a vast quantity of information to be organized rather than spewed out as part of a search result and then randomized in an unorganized way.”

The group also says rules that only affect Google in Ohio, while leaving the company unregulated in other states, would disadvantage Ohio businesses that rely on Google's search engine.

“Under Ohio's approach, Ohio businesses will have an inferior search experience with results that are geofenced to meet Ohio's judicial regulation,” the Chamber argues. “For obvious reasons, this puts Ohio businesses at a disadvantage with its national competitors, or even just its competitors in neighboring Michigan, Kentucky, and so on.”