Today, driving my new car, I asked it a question: “Is smoking bad for your health?” I made my inquiry into a speakerphone hooked up to its on-board computer, which was connected to Google via a Microsoft-based application.
My car’s computer did not have an opinion but instead gave me the location of five nearby stores selling tobacco. I tried a different question, with a theological twist: “Does God exist?” I was hoping for real, opinionated answers – human answers, with a definite point of view. The computer said meekly, “I am sorry, I am unable to answer without additional information. Do you seek the location of a spiritual advisor?” I snapped off the car’s on-board programs. (For kicks, I wanted to ask “How much wood could a woodchuck chuck if a woodchuck could chuck wood?” but I didn’t. Take that, Siri!)
The First Amendment to the United States Constitution guarantees the right to Freedom of Speech. Such protection has been extended by U.S. Supreme Court decisions to cover not just persons, but also corporations (such as in Citizens United, 2010) and illegal aliens.
Could it also include robots, computers, and artificial intelligence of any kind?
In a New York Times editorial page article on June 19, 2012, Tim Wu, author of “The Master Switch,” asked “Do computers have free speech?” His article touched on recent legal issues surrounding free speech rights which various internet and tech companies such as Google, YouTube, Yahoo, Facebook, Microsoft, and Apple have faced. In particular, the question is whether such companies – particularly their website’s answers, i.e. search engine results – might be protected under traditional concepts of “free speech.” If so, then giant, global internet and media companies might not be subject to strict regulation or oversight (or censorship) in ways in which various state, federal and international authorities want them to be.
Here’s an example: The Justice Department has been asked recently (and has hired a hotshot female lawyer to investigate Anti-Trust claims against Google) to determine if Google unfairly, by using its near-monopoly power and status as the world’s No. 1 search engine provider, places certain “results” higher and “prior” in its search engine results; other competitors, such as Microsoft, but also non-profit organizations such as Wikipedia, have contended that Google’s results don’t accurately always reflect what internet users are most frequently or popularly seeking – and that ad revenues and profit drive the results.
But Google has a new argument against Anti-Trust and monopoly claims – free speech. Basically it contends that answering questions is a form of free speech, guaranteed under the First Amendment. You ask a question, you get an answer: Google’s corporate “robots” become … well, human. Sort of.
The Federal Trade Commission last year issued a subpoena to the search giant demanding wide-ranging information about Google's business practices, as the FTC evaluated whether the company had unlawfully used its monopoly power in search and advertising. For companies who say that Google has abused its dominance in search to hurt competitors and boost its own products, the investigation is encouraging. "This is not a good day for Google. They are now sitting across the table from somebody (the FTC) who is not going to flinch," said Gary Reback, a prominent antitrust lawyer with a California law firm who represents a number of Internet companies that have lodged complaints against Google.
The argument that machines speak was first made in the context of Internet search. In 2003, in a civil suit brought by a firm dissatisfied with the ranking of Google's search results, Google asserted that its search results were constitutionally protected speech, saying “Google and other search results are speakers!”
But as Wu states in his Op-Ed piece, the suggestion that when computers make “results” choices they are “speaking,” and thus enjoy the protections of the First Amendment, is a “bad idea” that threatens the government’s ability to oversee companies and protect consumers.
"Considering that Google has attracted attention from both antitrust and consumer protection officials after accusations that it has used its dominance in search to hinder competitors and in some instances has not made clear the line between advertisement and results; and considering that the “decisions” made by Facebook’s computers may involve widely sharing your private information; or that the recommendations made by online markets like Amazon could one day serve as a means for disadvantaging competing publishers," Wu concludes, “If we call computerized decisions ‘speech,’ the judiciary must consider these laws as potential censorship, making the First Amendment, for these companies, a formidable anti-regulatory tool.”
Which leads me to this: If I want an opinion on how I look, or what I should wear, I won't "ask" Bing or Google – I'll ask my girlfriend or co-worker; only they can "speak" a reply utilizing human thought. Asking Google "Am I good looking?" only leads to tips on how to survive the Darwinian sexuality rat race, quizzes on celebrity hotness, and a half-dozen links to Match.com. In other words, sometimes free speech is just dull speech, too.
(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in criminal defense, divorce and family law, civil rights, and personal injury cases, as well as juvenile, probate, real estate and business litigation.)