Rescripting Search to Respect the Right to Truth
Mulligan, Deirdre K. and Griffin, Daniel S., Rescripting Search to Respect the Right to Truth. 2 GEO. L. TECH. REV. 557 (2018).
Search engines no longer merely shape public understanding and access to the content of the World Wide Web: they shape public understanding of the world. Search engine results produced by secret, corporate-curated “search scripts” of algorithmic and human activity influence societies’ understanding of history, and current events. Society’s growing reliance on online platforms for information about current and historical events raises the stakes of search engines’ content moderation practices for information providers and seekers and society. Public controversies over the results returned by search engines to politically and morally charged queries evidence the growing importance, and politics, of corporations’ content moderation activities. Despite public concern with the political and moral impact of search engine results, search engine providers have resisted requests to alter their content moderation practices, responding instead with explanations, directions, and assistance that place responsibility for altering search results on information providers and seekers. This essay explores a public controversy around the results Google’s search engine returned to the query “did the holocaust happen” in order to understand how different imaginaries of the script of search contribute to the production of problematic results and shape perceptions of how to allocate responsibility for fixing it. Using Madeleine Akrich’s conception of a script—the roles and expectations prescribed to, and demanded of, the users by the designers of a technology—we unpack mismatches that fuel public objections to the results and corporate resistance to changing the script that produced them. Public objections are grounded in well-founded imaginaries of search engines not merely as providers of relevant information, but at least with respect to human rights atrocities such as the holocaust, as stewards of authoritative historical truth. Corporate resistance to altering the search script is rooted in a deep commitment to engineering logics which tether search engine performance to observational measures of user satisfaction, coupled with limited recognition of the role search results play in constructing the need being satisfied and a general reluctance to diverge from the search script to remove content protected by the First Amendment. Despite this resistance, we believe Google and other search engine providers are not completely wedded to the current search of script, just reluctant to move without clear guidance and concerned with the potential consequences of rescripting other speech. The essay concludes by offering a way forward grounded in developments in business and human rights. The emerging soft law requirement that businesses respect and remedy human rights violations entangled in their business operations provides a normative basis for rescripting search. The final section of this essay argues that the “right to truth,” increasingly recognized in human rights law as both an individual and collective right in the wake of human rights atrocities, is directly affected by Google and other search engine providers’ search script. Returning accurate information about human rights atrocities—specifically, historical facts established by a court of law or a truth commission established to document and remedy serious and systematic human rights violations—in response to queries about those human rights atrocities would make good on search engine providers’ obligations to respect human rights but keep adjudications of truth with politically legitimate expert decision makers. At the same time, the right to freedom of expression and access to information provides a basis for rejecting many other demands to deviate from the script of search. Thus, the business and human rights framework provides a moral and legal basis for rescripting search and for cabining that rescription.