Ohio, Google Trade Blows in Google Search Common Carrier Clash

An Ohio court can and should call Google Search a common carrier, the state argued Friday. In a separate opposition brief, Google protested that it’s nothing like a common carrier: "Google is not a 'dumb pipe' or 'mere conduit.' The Ohio Chamber of Commerce supported the company, arguing in a Thursday amicus brief that Ohio’s attempt to regulate the search company would be “anti-business.”

Ohio and Google responded to each other’s January cross-motions for summary judgment in case 21-CV-H-06-0274 at the Ohio Court of Common Pleas, Delaware County (see 2401260074). Reply briefs are due March 15 and trial is set for Sept. 3 under the court’s schedule. Judge James Schuck refused to dismiss Ohio’s lawsuit in May 2022, ruling that Ohio “stated a cognizable claim” that Google could be a common carrier (see 2205260057). In that ruling, Schuck agreed with Google that it’s not a public utility.

Google's self-declared victory is premised on the court expanding "precedent in multiple respects,” the state argued. "Ohio common carrier law needs no expansion … Google Search meets each and every criterion with no need to resort to the creative interpretation that Google proposes."

The court need not wait for the legislature to say Google is a common carrier, Ohio said: The Ohio Supreme Court didn't "shy away from applying common carrier principles for the first time to an airline, an elevator, or a telephone system. Neither should this Court hesitate to do so in this case." Also, federal telecom law doesn't take away the Ohio court's authority to decide if Google is a common carrier under state law, it said. “The status of broadband internet providers in the federal regulatory scheme does nothing to preempt this Court's authority to rule in this litigation." In addition, Ohio disagreed that designating Google as a common carrier would, by itself, violate the First Amendment.

Google returned that Ohio "seeks to expand the concept of common carriage to an untenable degree not supported by Ohio common law (or any other common carriage law).” Ohio's definition would also cover "newspapers and many websites that, like Google Search, offer no transportation on carriage services, but rather provide users with information that the provider has determined could be valuable for users,” Google said.

State and federal laws alike compel the court to find Google Search isn't a common carrier, Google argued. First, Google Search carries nothing, it said. Rather, the company said it supplies answers to users' requests for information. "This product that Google sends to users via ISPs is a product of Google's creation -- not a message of a [user's] creation."

Second, common carriers are indifferent about what they carry, but Google "exercises discretion at every stage of its processes, from obtaining and indexing information, to interpreting and understanding a search query, to designing a search results page." Ohio erroneously asks the court to consider whether Google's service raises "public concern," but the state doesn't cite any authority for the idea that this is part of the test for determining what is a common carrier, Google said. It may be a factor for public utilities, but the court earlier ruled Google isn't one of those.

The court should grant Google summary judgment and reject Ohio's "attempt to saddle a private actor ... with burdensome requirements based on a false label of 'common carrier,'" wrote the Ohio Chamber. "Governments ... are ill suited to make fundamental decisions about how private actors design internet sites to serve their commercial interests." Concerns about how a big tech company participates in public discourse "provide no basis for making a novel exception to well-established common carrier tenents,” added the chamber: Don’t “open a Pandora's Box by unleashing a fury of instability and inconsistency for all types of Ohio businesses."