Algorithmically generated editorial judgment is still judgment.
Is Google using its power as the number-one search engine to promote its own products such as Google Places and Google Maps? That was the question at hand last fall when Google executive chairman Eric Schmidt testified in Congress. "I see you magically coming up third every time," Senator Mike Lee of Utah said. "I don't know whether you call this a separate algorithm or whether you've reverse engineered one algorithm, but either way you've cooked it, so that you're always third."
Schmidt responded, "Senator, may I simply say that I can assure you we've not cooked anything."
Schmidt's sounded definite but it didn't really answer anything -- what precisely would qualify as cooking the results? Google could claim not to "cook" anything, but it's indisputable that it writes the algorithms that underlie its search tool, and that those algorithms include choices -- judgment -- that whittle the Internet's billions of pages down to a ranked list of 10.
That process -- that judgment -- is now at the heart of an argument in defense of Google against the accusations of anti-competitive behavior. Coming from Eugene Volokh, the UCLA law professor and prominent blogger, is a paper that makes the case the Google's search results are an editorially curated product, not different from a curated list of likes like the Drudge Report, multiplied ad infinitum. And, as the Drudge Report would be protected by the First Amendment, so should Google search results. With this argument, Google (who funded Volokh's paper) takes the argument against the company and turns it on its head: You think we are not being "neutral" in our search results? Damn right we are not being neutral. And it's for exactly that reason that you can't do anything about it.