Malign Manipulations: Can Google's Shareholders Save Democracy?

Abstract

Research shows that by manipulating Google Search—or more precisely, the order of the search results—a malign actor can shift public opinion regarding a candidate for political office, or public policy issue. One double-blind study conservatively estimated the shift at twenty percent of undecided voters. See Robert Epstein & Ronald Robertson, The Search Engine Manipulation Effect, 112 PNAS E4512 (2015). However, it is not clear the extent to which Google Search has, to date, been manipulated for political purposes. The answer to that question is a carefully guarded secret at Google (or the subject of willful blindness). Some light was shed on the matter during the December 11, 2018 House Judiciary Committee Hearing on Transparency and Accountability: Examining Google and its Data Collection, Use and Filtering. At that hearing, Google CEO, Sundar Pichai testified on the issue for several hours. However, his testimony left many questions unanswered (and raised many more). For that reason—to provide answers—this Article argues that Google's shareholders must compel the company to disclose the extent to which Google Search has, to date, been manipulated by bad actors. This Article explains how Google's shareholders can compel such disclosure using Rule 14a-8 under the Securities Exchange Act of 1934. Unfortunately, search engine manipulation has been loosely defined by authors. Many authors use search engine manipulation as a catch-all term for any reordering of search results (other than by relevance). This Article precisely defines search engine manipulation as: (1) malign third-parties gaming the search algorithm for political ends, or (2) malign insiders tweaking the search algorithm for political ends. Finally, while this Article focuses on Google Search, the concerns regarding manipulation apply to any other search engine (e.g., Bing or Yahoo) or other platforms that use algorithms to find information for users (e.g., Facebook, Twitter, and even Amazon).