Dave Yost

According to American law, particularly important companies such as railways, electricity providers and telephone companies must accept all customers and treat everyone fairly because provision of the relevant services by two or more providers is not easy to achieve or is not economically efficient. As Ohio attorney general, I filed a lawsuit last month to get a court statement that Google has now grown to be just such a company - a public utility for online search.
Google is everywhere. More internet traffic is processed on Google and the Google subsidiary YouTube than on the following 50 most popular websites combined. And it's not just about traffic: Google dominates internet search. The company controls nearly 90 per cent of the search engine market in the United States and an even larger share globally. Bing, the second largest online search provider, has a market share of just six per cent in the US and two per cent in the rest of the world.
More than 30 states, including my home state Ohio, have joined a non-partisan antitrust lawsuit against Google. Regardless, Ohio is pursuing Google based on common law for public utilities - an act that I strongly advise other states to follow. Should Ohio prevail with its lawsuit, there will be no cumbersome antitrust decision based on the “Mother may I ?” Principle with which the state tries to dictate how Google should run its company or write its algorithms. In contrast to antitrust law, the Ohio lawsuit does not aim to reduce Google's user base. We're not even asking for damages, just a simple statement that Google is a public utility by law.
As a public utility company, Google would be legally obliged to act in the public interest, to grant all users and all information providers equal access and to behave impartially towards information providers - especially towards Google competitors in other business areas. That's all. From a legal point of view, this is much more moderate than what antitrust law would require. However, Google has announced that the Ohio lawsuit has "no factual or legal basis," and has announced that it will defend it in court.
If Google were declared a public utility, not much would change for the average internet user in their online searches. This is mainly due to the fact that when you search Google, you are not the customer, but the product. Google uses your detailed personal information for targeted advertising. The minor changes that result from being classified as a utility will actually benefit users. For example, you would be shown the results you were actually looking for instead of being directed to Google products.
My lawsuit alleges that Google is prioritising its own products and platforms in search results. According to the market research company SparkToro, at least 65 per cent of Google searches in 2020 were so-called "zero-click searches". That means: The user never left the Google area during their search. According to research by the non-profit investigative project The Markup for example, a search for flights will first provide integrated results from Google Flights, while competitors such as Travelocity and Orbitz may be excluded. As a public utility company, Google would have to give other providers a chance in its search options.
Should Google be classified as a public utility company by court order, the market itself would ensure compliance with the guidelines. Anyone who feels they have been treated unfairly could take legal action against it. Modern public utilities largely abide by the rules, so it is unlikely that Google will be hit by a wave of lawsuits.
The fact that public utilities are obliged to act in the public interest goes back to the English case-based common law from the time when important economic actors such as ferry operators had to perform certain duties for the general public. During the Gilded Age in the USA at the end of the 19th century, the railroad magnate Cornelius Vanderbilt controlled a bridge that was central to the train connection to New York City. In the late 1860s, he closed the bridge to competitors. This cut off the rest of the US from the largest port in the country and the city of New York from the food supply from the west.
When the shares of the competing railroad companies crashed, Vanderbilt quickly bought the majority of the shares and brought them under his control. So Vanderbilt used his rule over the eye of a needle to establish a monopoly. To prevent such machinations, Congress passed the Sherman Antitrust Act in 1890, which then went on to legislate on public utilities.

Criticism
Of course, Ohio's lawsuit has been criticised from many quarters. To take the wind out of the sails of one or the other advanced argument from the outset: The Ohio lawsuit will not restrict Google's right to freedom of expression. On the contrary: Google can say anything it wants in the future too. It is just not allowed to restrict the business activities of other providers by using its monopoly-like market power to dominate other markets in online searches.
Another point of criticism is that this approach creates the problem of a so-called " dormant commerce clause ". This term stands for a situation in which the legislation of a single state makes trade between states difficult and thus contradicts their sovereignty and federalism. However, Google would have the option of geofencing Ohio - like the other states that will most likely follow Ohio's example - if the company deems it appropriate.
In fact, foreign governments have long since started regulating cyberspaces around the world and are struggling with far tougher conditions in the process. The European Union requires cookie warnings and data protection guarantees. The company has only just settled the legal dispute with France over Google's advertising infrastructure.
In our case, the first statement from Google is expected in the next few weeks. The foreword to the Google parent company's code of conduct states: "Do the right thing - obey the law, behave honorably and treat employees politely, helpful and respectful." That is exactly what Google could do by recognising what is already obvious: Google now has such a dominant position that the rules that apply to private companies should no longer apply to the group.

(Dave Yost is a lawyer and Republican politician)
- International Politics and Society