20 Geo. Mason L. Rev. 1003 (2012-2013)
Keeping Google Good: Remarks on Privacy Regulation and Free Speech

handle is hein.journals/gmlr20 and id is 1021 raw text is: 2013]

KEEPING GOOGLE GOOD:
REMARKS ON PRIVACY REGULATION AND FREE
SPEECH
Jeffrey Rosen*
Some argue that a cost-benefit analysis is useful when evaluating pri-
vacy concerns.' But in recent arguments, Google has maintained that a cost-
benefit analysis along these lines may be unconstitutional.2 In a recently
published white paper commissioned by Google, Eugene Volokh and Don-
ald Falk suggest that everything the company does-from search to geolo-
cational tracking-is a form of speech, fully protected by the First Amend-
ment and therefore immune from regulation.
I would like to suggest that this dramatic First Amendment claim is
unfortunate and should be challenged. Regulating Google is important in
some circumstances because it creates benefits. Google's informal corpo-
rate motto is Don't be evil.3 Regulating Google-not only in the realm of
privacy, but also with regard to antitrust regulation-prevents Google from
becoming evil and losing that core sense of corporate responsibility. Eric
Schmidt controls Google today, but imagine if Google were controlled in-
stead by Kim Jong-un. An evil Google, armed with the vast data it con-
trols, could pose grave threats to constitutional values like privacy and free
speech and could generally threaten innovation around the world. There-
fore, I would like to argue that Google's strong First Amendment claim
should be resisted; without regulation and oversight, good Google might
become bad Google, which would impose considerable costs to people
around the globe.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center
and a Professor of Law at The George Washington University Law School. These Remarks were
adapted from Mr. Rosen's contributions to the George Mason Law Review's 16th Annual Symposium
on Antitrust Law: Privacy Regulation and Antitrust, held on January 17, 2013, at George Mason Univer-
sity School of Law in Arlington, Va.
I Lloyd Hitoshi Mayer, Nonprofits, Politics, and Privacy, 62 CASE W. RES. L. REV. 801, 817
(2012).
2 See Langdon v. Google, Inc., 474 F. Supp. 2d 622, 629-30 (D. Del. 2007); Search King, Inc. v.
Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *4 (W.D. Okla. May 27,
2003); see also EUGENE VOLOKH & DONALD M. FALK, FIRST AMENDMENT PROTECTION FOR SEARCH
ENGINE SEARCH RESULTS 27 (2012), available at http://volokh.com/wp-content/uploads/2012/05/.pdf
(stating that Google and other search engines are shielded by the First Amendment, which blocks the
government from dictating what is presented by the speakers or the manner in which it is presented).
3 Steve Lohr, Don't Be Evil, N.Y. TIMES (Dec. 26, 2004), http://www.nytimes.con/
2004/12/26//26evil.html.

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