The Future of Disparate Impact

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Disparate impact has seen its fair share of controversy in the past year and a last minute deal probably saved the theory it in late 2013.

The Equal Employment Opportunity Commission (EEOC) received lots of attention and a fair amount of criticism when they filed legal complaints against BMW and Dollar General alleging discriminatory practices based upon disparate impacts.  BMW had a hiring process that screened out applicants with a criminal conviction.  Dollar general had a similar policy.  The EEOC alleged even though the policies were not targeting any class of people, African Americans are negatively impacted because of their disproportionate arrest and conviction rate.  The pundits filled both the television and the opinion pages of newspapers arguing for and against the legal strategy.

To magnify the discussion surrounding disparate impact the United States Supreme Court accepted certioari for the 2013 term, Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., No. 11-1507 (2012), but a private deal was brokered weeks before oral arguments and the case never made it to the justices.  The issue that would have been argued is whether disparate impact claims are applicable under Section 804(a) of the Fair Housing Act (“FHA”). That section makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  The reason why many people think the court decided to hear the case is at least revise how disparate impact is used in the housing context.  Eleven federal courts of appeals during thirty-eight years have upheld the disparate impact standard in the context of the Fair Housing Act.  Brief for the Respondent, No. 11-1507 at 27-28 (2012).

Disparate impact is used as a tool for determining if there is discrimination.  It is used in cases where there is a facially neutral policy (the policy is applicable to everyone), but the impact negatively affects a class of people.  Even if a neutral practice does have such a disparate impact, a business will not violate Title VII if it can prove that the neutral practice is job related and consistent with business necessity. For a much more in-depth explanation of disparate impact, see my post about the theories of discrimination.

Academics have also chimed on disparate impact as well.  Many of the articles in the current Harvard Civil Rights – Civil Liberties Law Review are centered on disparate impact:

The Agency Roots of Disparate Impact

Assessing HUD’s Disparate Impact Rule: A Practitioner’s Perspective

Banning the Box but Keeping the Discrimination?: Disparate Impact and Employer’s Overreliance on Criminal Background Checks

As for my own personal opinion, I think disparate impact will be used in determining discrimination complaints for the foreseeable future.  Overt discrimination appears less and less.  So being able to produce a document or policy that discriminates against a class of people is more of a relic of the past.  I do not believe discrimination is dead — in fact, far from it.  On the other hand, I also believed that disparate impact is not a perfect tool for evaluating discrimination.  But I think it is a very valuable tool in the arsenal to combat discrimination.

 

 

Phoenix and Tucson Police Directives

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The Tucson provides their directives online on governmental websites (a link is at the bottom of the post).  It appears there is some type of trend for the most populous cities in the United States to provide their directives online, either voluntarily or through a court order.

I think it is great police are posting their directives online.  It is a win-win for all.  Some might not think allowing anyone with an internet connection to see the inner-workings of the largest police stations in the state and nation would be a good thing, but let me explain first.

When voluntarily provided the police are able to set the terms on what and how it is distributed.  For example, in the Phoenix Police Directives, Section-9, which describes tactical plans is omitted from public view (for a while the Phoenix Police directives were available on the Phoenix Police website, which does not appear to be the case anymore).  When police voluntarily share information with the public they are the arbiters of what is included, like when the Phoenix Police decided their tactical plans should remain private.  I think that should be applauded.  If the public is able to reference police procedures, it can build trust within the community.

For example, the Tucson Police General Orders, subsection 2200 Constitutional Issues, indicates the do not pay for informants — good to know.  If someone ever claiming to be a police officer offers me money for information, I will know to be suspect of the situation.  Knowing Tucson’s police current policy and being able to reference it quickly via the internet instills trust and confidence that I have in them.

Phoenix Police Department Procedure / Manual

Phoenix Police Department Procedure / Manual

This is an example directive taken from the Tucson police manual.

Tucson Police Department Manual / Procedure.

I have not yet have had the time to go through and compare the procedures of Phoenix, Tucson, and Mesa on every single point.  What I think would be really interesting is to see what if any differences there are between the different departments.  My guess is that there may not be too much of a difference because there are companies that provide boilerplate for police departments.

One thing I did look for is how the police treat citizens who they know suffer from mental health.  The Phoenix Police have several policies that deal with mental illness — some of which go above and beyond what other major cities apparently require.  I will go into detail further at a later date.

Access the directives here:

Phoenix Police directives (this is a direct link and the file is more than 1,200 pages in length.  Please be advised it is a large file).  Note: It appears that the Phoenix Police Department at least has temporarily removed their directives from their website.  The copy provided below is what I previously downloaded while it was publicly available on the internet.

Tucson Police directives

See my earlier post about the city of Mesa Police directives.

***It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

Mesa, Arizona Police Department Directives

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Through an Open Records Request, the Mesa Police Department shared with me their directives.

Mesa Police Directives Theft Investigations

Mesa, Arizona Police Directives Theft Investigations

Police directives come by several interchangeable names including procedures and manuals. Basically are two types of directives for police: written and unwritten.  Written directives are crafted for scenarios that are foreseeable that police may encounter.  Oral directives are left for times where the scenarios are unforeseeable.  It can be argued that the written directives set a self-imposed standard of care.  By looking at the directives, a person will have one sign post in which to to help make a determination if which the police acted in accordance with their own standards.

Here are the Mesa Police directives (it is a large file almost 1,300 pages in length, so it is probably best to download it to a place where you can read it).

*** It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

 

 

 

Implementation of Search Engine Link Deletion

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It looks like the European Union is going to be the test case for search engine link deletion in the name of individual privacy.  Some are saying this is the end of the internet as we know it because unfettered search results of the past are now going to be censored.  Others are saying this is the start of a new era for individual privacy.  My guess is that it will be somewhere in between the two ends of the spectrum.

Google already unveiled the new form earlier this week where users can request to delete a link that is: irrelevant, outdated, or otherwise inappropriate.  Procedurally, it appears a resident of a European country can visit the site https://support.google.com/legal/contact/lr_eudpa?product=websearch. The user then fills out the form and Google will sometime in the future make its determination.  ]It is unclear how which links will be selected for removal and which links will remain in the database.  Since this is uncharted territory for any search engine, the results will be interesting.

Google Link Deletion Form

Google Link Deletion Form

Courts are given power to adjudicate the law in its given jurisdiction — a geographical boundary.  However, the internet is not very good at setting boundaries.  Some countries try to filter the internet within their borders to varying degrees of success.  Licenses also restrict content providers from where they may provide their goods, through geo-blocking.  It is unclear at best how Google will only limit residents of the European Union to its link removal service.  The internet knows no speech boundaries.  It is quite possible that after some time Google may allow all searchers to file for link removal.

Since it looks like link deletion is here to stay, the impact on speech, if any, needs to be sorted out.

Previously,  I analyzed the speech issues associated with the European court’s decision.  I argued search engines employ two different types of speech that should be afforded different levels of protection.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

Proper evaluation of the protection courts will provide for search engine speech is important because technology evolves.  A letter from Sergy Brin and Larry Page to the shareholders in 2013 gives a glimpse of how search may evolve in the coming years.

While it is still early days, we’ve also made significant progress understanding people’s context, which is crucial if we are to improve human-computer interaction. Think about your commute.  You need the traffic information very accessible so you can plan for it, or avoid it altogether.  If you’re going to another appointment, you want the directions to start from where you are at that moment (rather than having to type in your location on a small screen).  Improved context will also help make search more natural, and not a series of keywords you artificially type into a computer.  We’re getting closer: ask how tall the Eiffel Tower is, and then when ‘it’ was built.  By understanding what ‘it’ means in different contexts, we can make search conversational.

– Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

It is difficult to assign constitutional protections to technologies because by the times courts come to a consensus the technology is outdated.  See United States v. Jones, 132 S. Ct. 845 (2012) (holding a car mounted GPS to monitor the vehicle’s movements constitutes a search under the Fourth Amendment).  As search engines continue to evolve over time, it is important the judicial rules are able to adapt to the changing technology.

 

Interstate Transfer of Undocument Immigrants

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More bus loads of immigrants are being dropped off at Phoenix bus stations.

Arizona Governor Jan Brewer, said in a letter to President Barack Obama that thousands of immigrants from south Texas are being transported to bus stations in Tucson and Phoenix by the Department of Homeland Security (DHS). A local news outlet is reporting that Arizona is the only state in which immigrants are currently being shipped.  Apparently, immigration holding facilities in south Texas are overflowing and are seeking relief. “Everyone was packed in like sardines. Too close to sleep. They came in the middle of the night to drop off bread and bang on the doors,” and then loaded onto a bus headed for Phoenix. Xiomara Maldonado, a passenger on the DHS bus, told ABC15.

There are many humanitarian issues surrounding the transportation.  First, the immigrants do not have anywhere to go when dropped-off at the bus stations in Phoenix and Tucson.  There was no prior coordination between Texas, Arizona or the Federal government on a protocol.  Arizona officials claim they had no prior knowledge of the transportation, whatsoever. It is “especially disconcerting that (the United States Department of Homeland Security) instituted this operation without any notification to my office, the Arizona Department of Public Safety or the Arizona Department of Homeland Security. We instead learned of this action from the news media.” Governor Brewer wrote in her letter.
Second, when immigrants are dropped off in Arizona, no food water or shelter is arranged, which is especially dangerous because there have been excessive heat warnings for the last several days.  Local charities and volunteers are trying to help in any way possible.

My problem is the kids, it’s getting hot and you just dump them off at the bus station? Who’s going to take care of the kids? Is that humane? No it’s not humane.

– Mariciopa County Sheriff Joe Arpaio told Fox 10 news.

While driving in downtown Phoenix yesterday, I saw one of the DHS buses…going somewhere.  News channel Fox 10 in Phoenix later saw the same bus dropping off immigrants at a bus station.

Ice Transfer of Undocumented Immigrants in Phoenix, Arizona

Department of Homeland Security transfer of undocumented immigrants in Phoenix, Arizona, June 3, 2014.

It is unclear at this time what are the legal implications.  Setting aside jurisdictional issues, what happens if someone is hurt or injured because of this process?  With buses arriving daily, it appears that it is a new policy or custom of DHS made at a higher level and not just some rogue employee calling the shots.

Sources:
Arizona Governor Jan Brewer letter to President Barack Obama

Fox 10 News – Sheriff Joe Speaks Out; DHS Continues Immigration Drop

ABC 15 News – Transfer of Undocumented Immigrants

Legal Documents of the LA Clippers Forced Sale

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The forced sale of the Los Angeles Clippers may be moot, but the legal issues surrounding the forced sale are interesting.

Donald Sterling made offensive racial comments during what appears to be a private conversation that was taped and then leaked to news outlets.  The league claimed in it’s summary of dismissal, Sterling “disparaged African-Americans and ‘minorities’; denigrated the contribution of NBA players; directed a female acquaintance not to associate publicly with African-Americans; admonished that acquaintance for posting pictures of herself with African-Americans on social media; directed that acquaintance not to bring African-Americans to Clippers games; and criticized African-Americans for not supporting their communities.”  A public uproar ensued.  NBA Commissioner Adam Silver then fined Sterling $2.5 million dollars and placed an indefinite ban on him doing anything relating to the Clippers.  It appears Donald Sterling gave power to his wife to sell the team.

This really does not deal with an issue in Arizona, but the Phoenix Suns are part of the NBA and I found the topic interesting.

The National Basketball Association is kind of an oligarchy.  There is not much competition and very few owners.  Outside of college basketball, where the players are not paid, the only real alternatives are the WNBA and the D-League both of which have strong affiliations with the NBA — it is not fair to call them competitors.  With thirty majority owners (one for each team), it is a pretty exclusive club.  The owners collective hire the Commissioner who enforces the rules.  Furthermore, each team has a stake in creating the rules via the NBA Board of Governors (explained in the NBA Constitution).

How does it operate?  Outside of lockouts and rule changes, it does not seem like there is a lot of information on its operations.  Since it is unlikely that I will ever have the privilege of owning a sports team, it interests me to see how things run from the inside.

The NBA is guided by it’s own Constitution and By-Laws, which were apparently made public after the taped Donald Sterling comments.  It is nice to be able to see the rules the NBA owners have chosen to live by.

Termination of Ownership

The NBA Constitution directly deals with the termination of ownership in Article 13.  Like reported in the media, Article 13 says the interest of an owner may terminated by a 3/4ths vote for one of the enumerated activities.

  • ” Willfully violate any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.”
  • Transfer or attempt to transfer an ownership interest in violation of Article 5.
  • Fail to pay dues or other debts.
  • “Fail or refuse to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.”
  • Betting on games.
  • Allowing others to bet on games.
  • Fixing the score of a game — to allow others to bet on a game.
  • Disband the team during the season.
  • Intentionally fail to keep team from playing a game.
  • Intentionally lie on membership application.

– NBA Const. art. 13.

There is not a moral clause anywhere in there — after all, he is being charged with being immoral.   Offensive comments are not grounds for termination of ownership, nor are they illegal.  There really isn’t anything in the express language of the Constitution that Donald Sterling violated.

It is apparent the Commissioner exercised another section of the Constitution when it banned Donald Sterling.

The Commissioner shall have the power to suspend a Player, Coach, Member, Owner, or other person subject to the Commissioner’s jurisdiction for a definite or indefinite period and to impose such fines and other penalties as are authorized by Article 35, 35A…

– NBA Const. art. 24, sec. (h)(i).

Furthermore, Article 24, section (l) gives the Commissioner the power to impose fines.  The qualification to levy a fine is that there must not be a “fixed penalty” for the violation.  This section was most likely utilized in order to impose the fine upon Sterling.

NBA’s Arguments For Termination

The NBA in it’s Summary of Termination (see link below) argues that Sterling violated Article 13, sections (a), (c) and (d).

The league claims Sterling “willfully violated” 13(a) “when LAC destroyed evidence, provided false and misleading evidence, and issued a false and misleading public statement, as described above.”  Granted this is only the league’s summary, but the document does not state what was violated.  Section (a) is pretty clear the Constitution, By-Laws, or some other agreement needs to be violated.  Unfortunately, the Summary does not state a specific agreement that is violated.  Perhaps a potential violation could be found in Article 35A(c) of the league Constitution, “[a]ny person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner.”  This is just a guess on what the NBA could argue for breach.

The second claim is 13(c) gives the league cause when an owner fails to pay debts to the league.  The league considers the $2.5 million dollar fine a debt to the league.  Since Sterling refuses to pay the fine, the league says that is grounds for terminating his ownership.  This seems like a fairly reasonable interpretation of the league’s constitutional language.

Lastly, and the point the league spends the most time on, is a violation of 13(d).  There seems to be a lot of overlap with this alleged violation and the one alleged in 13(a).  The league claims that 13(d) could be violated by, “[T]he taking or supporting of a position or action which may have a material adverse impact on the league or its teams.”  Again, just looking at the Constitution probably the closest clause for a violation would be Article 35A(c).

An option not mentioned in the Summary is the NBA may have used Article 17(a) without an express breach.  This allows the Constitution and By-Laws to be changed by a 3/4s vote.  If the owners employed enough solidarity, they could write-in any act or behavior to prohibit, and could have easily have created some sort of morality clause after the fact.  It is not clear if the owners utilized this provision or not, but it is a likely option.  This option was tossed around in the media, but it did not receive a lot of support because of the precedent it would set.  Theoretically the argument goes, since Sterling’s comments arose out of a private, taped conversation, then it open the doors for the owners to amend the NBA Constitution to prohibit any private behaviors they find objectionable in the future.  From the facts I have gathered, it is unclear if this option ultimately was used, however some gave it a lot of weight.

Sterling’s Response to NBA (out of court)

The response by Sterling is interesting because his arguments are a hybrid of criminal law and the NBA Constitution.

First, Sterling argues that the taped call is inadmissible.  It is against California law for taped calls to be permissible into court.  While Sterling acknowledges the NBA Board of governors does not follow strict rules of evidence (either under California or federal law), but he cites the NBA does have some standards for what evidence it will look at.

Then he turns his attention to alleged violation of the NBA’s Constitution.

A jealous rant to a lover never intended to be published cannot offend the NBA rules.

– Donald Sterling’s Answer To Charge, In the Matter of the Termination of the National Basketball Association Membership of LAC Basketball Club, Inc., 3 (May 27, 2014).

He argues that Article 13(a) is a stretch.  Since the clause has the word “willful” it means that Sterling had to intend the results of his comments.  Since his comments were made in private, it would be very difficult for the NBA to argue Sterling comments were made with the intention of causing the NBA harm.  If Sterling only made the offensive comments in private, it would be one thing.  However, Sterling has a history of offensive racially charged conduct, and the public interviews he made in his defense in the aftermath only seemed to reinforce what he said in private.

Similar logic is used to defend against the charge of violating 13(d).  He argues that since his conversation was in private he did not take a position that was meant to harm the NBA or its affiliates.  As indicated above, the topic of the conversation was not about the course of the NBA’s business, but it was an argument about Sterling’s apparent girlfriend hanging out with other men.

Conclusion

On Friday, Sterling filed suit against the NBA on May 29 for violation of constitutional rights, breach of contract, antitrust violations and more.  The suit is seeking $1 billion in damages.  Since the league makes it’s own policies, Sterling’s best chance for keeping his team may be fighting in federal court.

Sources:

NBA Constitution and By-Laws

NBA Summary of Sterling Termination Charge

Donald Sterling’s Response to NBA Charge

 

 

 

Arizona Legal News

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  • U.S. Veterans Affairs Secretary Eric Shinseki resigned on Friday amid growing criticism from Congress. [AlJazeera] Why has it taken this long?  In early 2012, Dr. Katherine Mitchell, warned then Director of the Phoenix VA Sharon Helman of problems at the hospital.  In July 2013, another employee questioned the wait times being touted by the Hospital. In July 2013, Mitchell files a complaint to the Inspector General via Senator McCain’s office.  In October 2013, Dr. Sam Foote, a doctor of internal medicine at the Phoenix VA, claims in a complaint to the Inspector General that the wait time reduction is due to a manipulation of data. [AzCentral].
  • Can popular opinion force the name change of the Washington Redskins football team?  [NPR] Maybe, with the intervention of the league or Congress, but not if left up to its current owner.  In the wake of the Los Angeles Clippers forced sale and 50 United States Senators calling for a name change to the Washiginton football team, owner Bruce Allen wrote a letter to Congress defending the team’s name.  [Redskins.com]
  • Can cop-worn cameras restore the public’s faith in police?  In what looks like a Google Glass knock-off, New Orleans police are making the “body cameras” standard issue to its police force.  It will be interesting to see if the police keep the recordings and make them available for investigations, or if videos that negatively depict the police mysteriously disapperar.  [NPR]
  • Last week, law enforcement in New York City arrested 71 people in a child pornography sting.  [AlJazeera] I applaud the police for their efforts, in what appears to be a tough crime to prosecute, since the pictures are typically tracked across the internet.  I question, how much is the NSA helping with these investigations?  With their apparent internet-wide dragnet (that is unconstitutional in my opinion), why isn’t the NSA helping to remove child pornography from the internet?
  • The House of Representatives passed a law to curb mass data collection.  [ABC]

 

 

 

Privacy and Justice Alito

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Associate Supreme Court Justice Samuel Alito gave an in-depth interview to American Spectator magazine.  It is a wide ranging interview that encompasses both his personal life and judicial philosophy.

The Justice describes his judicial philosophy to the magazine.  “’I start out with originalism,’ he says. ‘I do think the Constitution means something and that that meaning does not change. Some of its provisions are broadly worded. Take the Fourth Amendment. We have to decide whether something is a reasonable search or seizure. That’s really all the text of the Constitution tells us. We can look at what was understood to be reasonable at the time of the adoption of the Fourth Amendment. But when you have to apply that to things like a GPS that nobody could have dreamed of then, I think all you have is the principle and you have to use your judgment to apply it.’”

I think I would consider myself a practical originalist.

I find this view interesting, to say the least.  There is so much how our country has changed since the adoption of the Constitution, I think I like this pragmatic approach.  To me at least, our forefather’s and their intentions play a critical role in interpreting the Constitution, but it cannot be the end-all, be-all of the analysis.  I think how society changes also needs to be taken into account.  I have never heard of the term ‘practical originalist’ before, so I am happy he gave it some context.

The interview also focused on technology.  There are several high profile cases this year including ABC v. Aero (transmitting public programming over the Internet to subscribers), and Riley v. California (cell phone search by police)One of the critiques of the courts is that they do not understand technology as well as other segments of society.

We need to own up to the fact that we are a lot older than a lot of the population. We don’t have the same level of experience with these things that a lot of people do.

It is refreshing to me when anyone is self-aware enough to admit his or her shortcomings — it is even more impressive when that person has the power that a Supreme Court Justice does.

It is a really interesting read.  I gained insight, understanding, and consequently respect for Justice Alito.  It is a good read.

Samuel Alito: A Civil Man

Arizona Legal News

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  • Apparently there are trampoline parks in Arizona (where have I been?) and new tougher regulations are being implemented, including increased insurance minimums.  [MyFoxPhx]
  • Some states are pushing legislation to try to increase the access of terminally ill patients to experimental drugs without the federal government’s approval.  Will the drug makers side with the states or the federal government?  [AzCentral]
  • A Federal Communications Commission study found that cable prices are rising at three times the rate of inflation.  Studies are nice, but what is the FCC going to do about it?  [BGR]
  • Another inmate died of apparent suicide while serving out a two and a half year term for marijuana violations and incarcerated in the Arizona Department of Corrections. [ABC15]
  • The Federal Communications Commission is under pressure from the courts, trade groups and public on net neutrality.  Here is a cheat sheet to help understand the options.  [ReadWrite]
  • Wage and hour issues are becoming a hot topic in civil rights litigation. Large corporations are coming under scrutiny. [Salon]
  • A federal court is hearing arguments on the conditions for Guantánamo detainees.  The court is hearing arguments whether the United States government can force feed a Syrian prisoner who has refused food.  The Guantánamo detainees have been staging hunger strikes since 2005 to protest their conditions. [MSNBC]

 

Search Engine Speech and Link Deletion

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A ruling by the European Court of Justice may pave the way for users at least in Europe, and potentially in the United States, to remove entries from search engines.  Some are saying this is the new frontier of free speech.

Usually when I think of speech, I think of it coming from a human — or at the very least originating from a human somehow.  The internet is changing how speech is viewed, in particular how search engines create speech.

Google Link Deletion Case

In March 2010, Mario Costeja, a lawyer in Spain, was searched for by an internet user on Google on which links to two newspapers documented Mr Costeja’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts.  See Google v. Agencia Espanola de Proteccion de Datos (AEPD), C‑131/12 (CUIRA 2014) (links to full text of the opinion). Mr. Costeja first requested the newspaper remove the content.  Then he requested that Google remove links to the content, so that while the content would still be on the internet, it would be much more difficult to find without a search engine listing.

AEPD ruled the newspaper had a right to keep the content on the internet.  But it did not think Google had a right to link to the article because of privacy reasons.  The agency considered that that obligation may be owed directly by operators of search engines, without it being necessary to erase the data or information from the website where they appear.

Case of Search Engine Free Speech

There is some concern the Google case might have a ripple effect and impact free speech in the United States.  It is important to first understand why it is thought search engines create speech.

Google commissioned UCLA Law Professor Eugene Volokh in 2012 to write a white paper about search engines and the First Amendment.  In my opinion, his paper is the leading resource on how the First Amendment applies to search engines. Professor Volokh makes three arguments why search engines create protected speech.

There are over 100 billion searches a month … and we now update our index within seconds to ensure we show the freshest results. To make life easier, we’re increasingly able to provide direct answers to your questions. For example, ‘what’s the deepest lake in the world?’ (It’s Lake Baikal in Siberia at 1,741 meters) or, ‘when does my flight leave?’ or, ‘how many calories in a pancake?’

– Larry Page, 2013 Founder’s Letter, available at https://investor.google.com/corporate/2013/founders-letter.html (last visited June 06, 2014).

First, search engines are now programmed to give the user particularized about her search.  If a user searchers a movie, the search engine may show movie theaters and times that are near her.  Alternatively, if a user searches a famous person (celebrity, politician, etc.) the first result may be to a biographical database such as Wikipedia, IMDB, etc.  Volokh argues this is information the search engine prepared in anticipation of certain types of searches.

Second, search engines create short caption about the webpage.  It is standard practice that search engines along with name of website and link to it, provide a short description (usually less than 160 characters) summarizing the webpage’s content.  While website owners may supply their own captions, ultimately, it is the search engines themselves that have final discretion on what goes into the caption making it speech.

Thirdly, and most importantly to Professor Volokh, search engines compile results in a way that anticipated to be the most beneficial to the user.  This is the essence of a search engine — its rankings.  According to Professor Volokh, the rankings are what breed loyalty and keep users returning time after time.

Professor Volokh then compares the search engine speech to more traditional speech such as: guide books, directories, newspapers judgement on where to place stories and which stories to run daily, etc.  There are many instances in a more traditional sense where prioritizing information (that is created by a third party) is protected speech.

All of that speech by search engines is jeopardized if a user of the search engine decides to delete a link from the index. Then the index’s proprietary compilation is jeopardized and the caption is removed.  The ruling by the European Court of Justice allows potentially any user or non-user of a search engine to act as a censor over the search engine’s work product.  If users are allowed to unilaterally delete links it may fundamentally affect the search engine’s business.  Thus, the search engines may seek protection under the First Amendment.

Search Engine Optimization, Search Engines and the First Amendment

There is a big difference between a search engine and a traditional counterpart (like a newspaper selecting articles for the front page) — at least half of a search engine is mechanized!

Search engines use spiders (a computer program) to crawl the internet, which find new websites, and new content on existing websites.  A spider will follow the links on an individual webpage, that lead to another webpage and it’s links, until the spider crawls the entire search engine.  See Matt Cutts, How Search Works, https://www.youtube.com/watch?v=BNHR6IQJGZs (last visited May 16, 2014).  It is unclear to me at the time of this writing this blog post, how much protection purely mechanized speech would receive.

Where there is more human intervention in the search results is when a link is removed from the database.  See Google Removal Policies, https://support.google.com/websearch/answer/2744324 (last visited May 16, 2014).  Google’s removal policy is on a “case-by-case basis.”  To me, this implies that humans are involved in the analysis of which pages should be removed.  It would be very difficult for a program to not only take the particularized concerns into account, but also look at the concerns individually and make a judgement on the merits.  A removal from the search results can be because of a personal request, or because Google deems the content to spam (a violation of it’s quality guidelines).  The quality guidelines are constantly being updated to conform with the ever-evolving pattern and practices on the internet.  See Matt Cutts, Guest Blogging, http://www.mattcutts.com/blog/guest-blogging/ (last visited May 16, 2014) (noting that “guest blogging” is now considered a spammy practice).

Perhaps a better analogy would be library classification systems.  There are various library classification systems that are used to help users find the book they are search for with more ease.  Is the Dewey Decimal System speech?  Is the Library of Congress Classification speech?  Or the Scott-Polar classification system used at the National Snow and Ice Data Center Library speech? Search engine’s ranking system seem to be more of a classification system that allow searchers find the information they seek more easily, just like a library classification system.

It seems to me that the First Amendment would apply to the decision to the removal process because that is where the actual speech takes place.  If search engines mechanically add as much content as they can to their databases, there is no inherent value in gobs and gobs of information.  The value that Google, Bing, Yahoo, DuckDuckGo provide is in their curated results.  There is some speech in the pre-programmed algorithms that determine page rank.  Humans develop those algorithms based upon the views of the company.  However, I would argue that since that process is largely mechanized it is not clear how much protection the algorithms that determine the rankings deserve.

Arizona-Law-Firm

For example, when I searched “Arizona law firm,” Google’s index provides 21 million results.  This is a fairly specific search, a search term I could look up in a phone book, or perhaps another curated list. The amount webpages that Google returns for this search is mind boggling.  To put this in perspective the approximate population of the state of Arizona is 6.5 million people.  There are more than 3x as many results for Arizona law firms as there are people who reside in Arizona.

With the sheer number of results in Google’s database, how is it possible for a person or even a company to credibly know all of what is in its index?  Keep in mind that Google and other search engines offers global search results in virtually every written language.  I would assert through analytics companies are able to predict searcher’s preferences with varying degrees of success.  Software algorithms provide search engines the ability to discover meaningful patterns in data, which can later be used to determine user’s preferences.

Is it speech it really speech if a company is unaware it is making it?  I would argue that it sets a precarious precedent allowing full protections of the First Amendment for speech that a person or company is not even completely aware it is making.

Again, it is not the libraries classifications that are traditionally thought of as speech — it is which books libraries decide to remove, or keep that is a speech issue.  Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866 (1982) (noting the removal of books from a school library may implicate the First Amendment rights of students).

Two Different Types of Search Engine Speech

I would argue there are two different levels of protection that should be afforded to search engine speech.  First, the removal and curation of the index seems to be pure speech.  This is where the most human interaction is involved.  Second, the ranking of sites seems to be less pure since humans only give the instructions.  There are so many websites out there that it is impossible for humans only to build a code that will execute it’s speech.

In a future blog post I will layout my reasoning why the removal and curation of the search engine index should receive heightened scrutiny.  On the other hand, the rankings, or mechanized speech should receive a lesser amount of scrutiny.

 

 

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