Google has been facing increased scrutiny from regulators in the United States and abroad for a hodge-podge of allegedly dodgy practices ranging from the company's privacy practices to possibly using its famous search algorithms to herd Google users to sites and portals it would like them to frequent instead of delivering their traffic to the competition.
Now the search giant has a new defender in legal scholar and one-time Supreme Court nominee Robert Bork.
Bork, writing an op-ed Friday in the Chicago Tribune, said none of the company's critics in government or elsewhere "has articulated a coherent theory of how Google harms consumers."
Instead, the conservative jurist and proponent of "orginalist" judicial theory opined that "[t]he principal basis for the investigations appears to be that if one does not understand practices in an industry, the practices must violate the law."
Google, along with Facebook, was recently named by Sen. Al Franken as a company that antitrust officials should be keeping an eye on, lest they become like the telco monopolies of years past.
"It isn't time for alarm bells just yet," Franken, a Minnesota Democrat, said in a March 30 speech before the American Bar Association. "There are still some lines Google and Facebook aren't planning to cross. Yet. But wouldn't we feel a lot more comfortable about that if we knew that market forces would act to stop such an egregious abuse of our privacy?"
The Federal Trade Commission has reportedly been looking into Google's competitive practices since last summer. The company faces similar legal entanglements and regulatory probes in jurisdictions ranging from the European Union to South Korea.
All those bureaucratic busybodies should just leave Google alone, according to Bork, author of 1993's The Antitrust Paradox.
"[I]t is hard to see how anything that Google does in search algorithms is unfair," he wrote. "Google bases its business on developing algorithms that facilitate consumer searches. Its competitors do the same thing. Google is just more effective."
Nor is Google's dominance in search a good reason to penalize the company, Bork argued, given the "extraordinary competition in the search engine business." And even if Google does game some of its search results, it's no big deal because "Google, as is any company, is allowed to define its product" and the company's commanding "position in generic searches was obtained legitimately through business acumen, not by a merger, monopoly or patent."
Finally, Bork had a similarly withering take on a "different theory" of competition that would label Google an "essential facility" and thus rightfully "compelled by law to aid its rivals."
"The U.S. Supreme Court has never accepted this theory and, for good economic reasons, has emphasized how the theory conflicts with the ambition of rewarding investments to bring new services to the market, exactly what search engines have done," Bork argued. "There is no economic basis upon which Google or competing search engines should be required to enhance the position of rivals."
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