Google should be treated as utility, Ohio argues in new lawsuit

Another legal woe for the tech giant which already faces lawsuits from a group of states and DOJ

Google’s critics have said for years that it should be treated like a public utility. On Tuesday, Ohio’s attorney general filed a lawsuit asking a judge to rule that the search company is one.

The case adds to the legal woes confronting the Alphabet Inc. subsidiary, which also faces antitrust lawsuits from the Justice Department and a separate consortium of states led by Colorado and Texas. The company is contending with cases in countries around the world where its dominance as a search provider has sparked a push by regulators to corral its power.

Amid the array of court challenges, Ohio said that it is the first state in the country to bring a lawsuit seeking a court declaration that Google is a common carrier subject under state law to government regulation. The lawsuit, which doesn’t seek monetary damages, says that Google has a duty to provide the same rights for advertisements and product placement for competitors as it provides for its own services.

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"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 Ohio Attorney General Dave Yost, a Republican.

A Google spokesman said that the remedies sought in the Ohio lawsuit would worsen the company’s search results and impair businesses’ ability to connect directly with customers. "Ohioans simply don’t want the government to run Google like a gas or electric company," a spokesman said. "This lawsuit has no basis in fact or law and we’ll defend ourselves against it in court."

In a statement alongside a Supreme Court order in April, Justice Clarence Thomas suggested that he believed regulating tech platforms as utilities had merit.

That case involved former President Donald Trump’s practice in office of blocking certain individuals from following his Twitter account. The court dismissed the case as moot, given that Mr. Trump was no longer in office, but Justice Thomas suggested that social-media networks such as Twitter, Google and other tech companies could be regulated to limit their power over who speaks and what is said over their platforms.

The Ohio case, however, isn’t focused on speech but rather on Google’s tendency to surface search results that direct users to its own products rather than rival services.

Google has a 91% share of search world-wide, according to StatCounter, a web analytics firm. Google’s decades-old lead in search has helped it amass queries that allow it to improve its service and make it difficult for rivals’ offerings— Microsoft Corp.’s Bing or DuckDuckGo—to compete.

For example, the search engine has appeared to surface videos from its online-video service, YouTube, over similar clips from Facebook Inc. The company also has faced allegations that it lifts content such as song lyrics and weather from other websites and features it as an answer to queries in so-called knowledge boxes rather than directing users to sites that are the source of that information.

Google has previously said that it doesn’t give preference to YouTube and that it doesn’t scrape other websites for useful information.

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In 2020, two-thirds of Google searches ended without a click, according to analysis of 5.1 trillion queries by SimilarWeb, a digital measurement service. SparkToro Chief Executive Rand Fishkin, who worked with SimilarWeb on its research, said that practice keeps users on Google’s site, where they are served ads, and deprives other websites of traffic and ad dollars.

In March, Google said in a blog post that SimilarWeb’s methodology was flawed because some people refine their queries before clicking through to a website. It said that its search engine sends billions of clicks to websites daily.

Mr. Yost argues Google’s practices prevent Ohioans from making informed choices by depriving them complete access to all available information. For example, a search for a flight might direct a user to Google Flights rather than surface the travel offerings of services such as Orbitz and Travelocity.

Legal scholars said there is little precedent for the case. "I don’t know how it would be possible to come up with a way of regulating the company while protecting it from competition at the same time," University of Florida business professor Mark A. Jamison said.

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The concept of common carriers and public utilities dates back to late 19th-century disputes over price controls or service denials. Courts determined that railroads, water companies, pipelines and ferries had to charge reasonable rates and serve the public without discrimination but had government-like powers, special privileges and protections from competition.

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Such legal battles faded in the 20th century when Supreme Court rulings permitted much broader government regulation of commerce that didn’t rely on such private and public interest distinctions.

"It strikes me as a very 19th-century lawsuit to bring," said Daniel A. Crane, a contracts and antitrust professor at University of Michigan Law School.

Ohio also joined 37 others in a case led by Colorado’s attorney general that is suing Google in U.S. District Court for the District of Columbia for anticompetitive conduct under the Sherman Act. That lawsuit alleges monopoly power over search engines through exclusive contracts such as its agreement with Apple to be the default search provider on iPhones.