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Some Much-Needed Antitrust Skepticism on Senate Letter Urging FTC Google Investigation

Posted by Geoffrey Manne on December 20, 2011

By Geoffrey Manne and Berin Szoka

[Cross posted at TechFreedom.org]

Back in September, the Senate Judiciary Committee’s Antitrust Subcommittee held a hearing on “The Power of Google: Serving Consumers or Threatening Competition?” Given the harsh questioning from the Subcommittee’s Chairman Herb Kohl (D-WI) and Ranking Member Mike Lee (R-UT), no one should have been surprised by the letter they sent yesterday to the Federal Trade Commission asking for a “thorough investigation” of the company. At least this time the danger is somewhat limited: by calling for the FTC to investigate Google, the senators are thus urging the agency to do . . . exactly what it’s already doing.

So one must wonder about the real aim of the letter. Unfortunately, the goal does not appear to be to offer an objective appraisal of the complex issues intended to be addressed at the hearing. That’s disappointing (though hardly surprising) and underscores what we noted at the time of the hearing: There’s something backward about seeing a company hauled before a hostile congressional panel and asked to defend itself, rather than its self-appointed prosecutors being asked to defend their case.

Senators Kohl and Lee insist that they take no position on the legality of Google’s actions, but their lopsided characterization of the issues in the letter—and the fact that the FTC is already doing what they purport to desire as the sole outcome of the letter!—leaves little room for doubt about their aim: to put political pressure on the FTC not merely to investigate, but to reach a particular conclusion and bring a case in court (or simply to ratchet up public pressure from its bully pulpit).

The five page letter concludes with, literally, three sentences presenting Google’s case, one of which reads, in its entirety, “Google strongly denies the arguments of its critics.” The derision is palpable—as if only a craven monopolist would deign to actually deny the iron-clad arguments of Google’s competitors so painstakingly reproduced by Senators Kohl and Lee in the preceding four pages. This is neither rigorous analysis nor objective reporting on the contents of the Senate’s hearing.

While we worry about particularly successful companies being singled out for punishment, we hold no brief for Google in this debate. Instead, in all our writings, we’ve tried to present a consistently skeptical view about a worrisome trend in antitrust enforcement in high tech markets: error-prone and costly intervention in markets that are ill-understood and fast-moving, to the great detriment of consumers and progress generally. Although our institutions have received financial support from Google among a range of other companies, organizations and individuals, our work is focused on this broad mission; we have no obligation or intention to support any company simply because it finds value in supporting our mission.

We’ve defended (and one of us has even worked for) Microsoft in the past, and just yesterday, we lamented the fact that the Obama Justice Department and the FCC have effectively blocked Google’s arch-rival, AT&T, from buying T-Mobile. Rather than defend any particular company, our goal, to paraphrase Hayek, is to “demonstrate to [regulators] how little they really know about what they imagine they can design”—lest they undermine how competition actually works in the name of defending outdated models of how they think it should work. Unfortunately, the letter from Senators Kohl and Lee does nothing to assuage our concern and suggests instead that crass politics, rather than sensible economics, could determine the outcome of cases like this one—if not in a court of law, then in the court of public opinion and extra-legal intimidation.

To begin with, the letter asserts that “Google faces competition from only one general search engine, Bing,” suggesting that only Bing (and it, only ineffectively) could keep Google in check. In essence, the Senators are prejudging an essential question on which any case against Google would turn: market definition. But why would the market not include other tools for information retrieval? Is it not at least worth mentioning that more and more Internet users are finding information and spending time on social networks like Facebook and Twitter, while more and more advertisers are spending their money on these Google competitors? Isn’t it clear that search itself is evolving from “ten blue links” into something more social, multi-faceted and interactive?

In a remarkable leap, the senators then identify the specific alleged abuse that Google’s alleged market power leads to: search bias. That’s remarkable because, other than the breathless claims of disgruntled competitors (given plenty of air time at the September hearing), there is actually no evidence that search bias is, in fact, harmful to consumers—which is what antitrust is concerned with. (Read both sides of this debate in TechFreedom’s free ebook, The Next Digital Decade: Essays on the Future of the Internet.)

As our colleague, Josh Wright, has thoroughly demonstrated, this “own-content” bias is actually an infrequent phenomenon and is simply not consistent with an actionable claim of anticompetitive foreclosure. Moreover, among search engines, Google references its own content far less frequently than does Bing (which favors Microsoft content in the first search result when no other search engine does so more than twice as often as Google favors its own content).

Of course, none of this is even hinted at in the Senators’ letter, which seems intended to condemn Google for “preferencing” its own content (under the pretense of withholding judgment). It’s a little like condemning Target for deigning to use its trucks to supply inventory only to its own stores instead of Wal-Mart’s, or, say, condemning a congressman for targeting earmarks for his own state or district. Earmark bias! Read the rest of this entry »

Posted in antitrust, error costs, exclusionary conduct, federal trade commission, google, Internet search, law and economics, markets, monopolization, regulation, technology | Tagged: , , , , , , , , , | 3 Comments »

The NYT on why law school is expensive

Posted by Larry Ribstein on December 18, 2011

It’s Sunday so the NYT has another David Segal screed on legal education.  This time he presents the insight that law school is expensive because of accreditation standards that prevent law schools from containing costs even if they wanted to.  Segal says, “[t]he lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.” He quotes several law professors — my former colleague Andy Morriss, now at Alabama; USC’s Gillian; Emory’s George Shepherd.

The article seeks to rebut the claim of the chairman of the ABA’s legal education section that high accreditation standards are necessary to give students “what they have a right to receive in terms of education” and “protect the public and make certain that graduates who offer themselves as qualified lawyers know what they’re doing.”  It examines the experiences of a start up law school in Tennessee, the Duncan School of Law, which is seeking ABA accreditation. The school must have a big library and professors with tenure and time to write law review articles.  This setup is great for law professors. So, as a couple of former law deans tell Segal, the professors exert their power through the accreditation process to maintain the status quo. 

In the end, the Duncan folks had to fly to a beachfront Ritz-Carlton in Puerto Rico to meet with the ABA to meet and make a 15-minute argument for provisional accreditation. The ABA’s questions indicated they were interested in the lawyer market in east Tennessee, suggesting that lowering clients’ costs mattered less to them than threatening lawyers’ income.

As usual (see my posts on past Segal screeds here and here) Segal presents common complaints in an overwrought stew with little cogent analysis.  Law is high-priced because the ABA is powerful and wants to keep it that way. Clifford Winston, co-author of First Thing We Do, Let’s Deregulate All the Lawyers, says this ABA-enforced “near-total absence of competition” is the big problem.  Raise your hand if this shocks or surprises you.

If you want more thoughtful analysis on the modern issues confronting law teaching you need to look beyond the NYT to a blog — namely this one, and especially our “Unlocking the Law” symposium, which had essays by, among many others, Gillian Hadfield and Winston’s co-author, Robert Crandall. My law review article, Practicing Theory, discusses many of the issues presented in Segal’s paper.

The NYT article typically fails to articulate the causes and cures of our over-priced legal system beyond the commonplace that the ABA somehow manages to restrict competition.  Segal blames the law professors, finding comfort in the scam-bloggers’ simple-minded denunciation of high-priced legal scholarship. But since Segal doesn’t explain how a bunch of eggheads sitting around writing useless articles came to control the ABA, he sounds like he’s blaming the mosquitoes for banning DDT.  This narrow focus isn’t surprising given Segal’s mission, which not to analyze or educate, but to entertain with simplistic narratives and pithy quotes.

So what’s really happening?  The cause of the current situation, as I make clear in my Practicing Theory, is obviously the practicing bar, a powerful lawyer interest group with an incentive to keep the price of legal services high.  Lawyers operate not only through the ABA but also local bar associations. Legal educators (law professors, law school and university administrators) come into the picture because they manage the key instrument for doing so — the academic institutions that keep the price of entry high. If the lawyers really wanted to make law school cheaper and more “practical” they could do it in an instant.

Gillian Hadfield’s suggestion to Segal of alternative accrediting bodies is one possible future world, but there are others.  The route to all of these worlds isn’t simply changing the law school accreditation system (accreditation is pervasive throughout the education world), but changing the system of lawyer licensing which maintains the current one-size-fits-all approach.  But how to do that when the powerful lawyers’ guild has maintained its grip on the process for almost a century?   

As I have discussed (Practicing Theory, Law’s Information Revolution, Delawyering the Corporation, Death of Big Law) the answer lies in the current rise of technology and global competition, which are combining with the soaring costs of legal services to crack the foundations of the current regulatory system.  Systemic changes such as changing the choice of law rules regulation of the structure of law practice and changing the intellectual property rules governing legal information products (Law’s Information Revolution, Law as a Byproduct) could hasten this process. 

Reform of law school accreditation ultimately will come along with significant changes to lawyer licensing whether lawyers and law professors like it or not.  Regulation of legal services will be unbundled, with only core legal services (however that comes to be defined) subject to anything like the current level of regulation, and other areas regulated at different levels or deregulated altogether. 

While lawyers and law professors can’t stop change they can shape the future.  In particular, they should start to provide a rationale for why the world needs at least some high-priced legal experts.  What, exactly, is it that lawyers do that’s so valuable?  The answer is clearly not “nothing,” although in a world of increasing competition and sophisticated technology may not be enough to maintain the current level of lawyer employment.

With respect to legal educators, as I discuss in Practicing Theory, law schools should continue to do what they do best — teach theory.  Although the theory should be relevant to what lawyers do, this doesn’t mean that law school should devolve to three-year apprenticeships overseen by practitioners.  The new world of law practice will leave the more menial and routine stuff to machines and non-lawyers.  Lawyers will handle the high-level legal planning and architecture.  They will have to learn how to build that legal architecture using disciplines such as philosophy, economics, political science, psychology, and computer science.

This leads me to the most interesting, if unspoken, aspect of Segal’s article.  All of the non-ex-dean law professors quoted in the article trained as economists. This isn’t surprising. An economist would not ask how we make sure lawyers remain important, but rather what it is that lawyers contribute on the margin.  (Perhaps it’s that tendency to ask such pesky questions and their skepticism about the government regulation that secures the demand for lawyers that some law professors don’t like about economists.) This is the kind of multidisciplinary perspective (as noted above, not just economics) that will provide the intellectual foundation of the future of legal services.  It’s going to come from law professors writing the high-priced articles that Segal and the scam-bloggers decry.  Of course, there will be fewer of them, at fewer schools, but that’s a story for another day.

Posted in law and economics, law school, lawyers, legal profession | 11 Comments »

Is Google Search Bias Consistent with Anticompetitive Foreclosure?

Posted by Josh Wright on December 9, 2011

In my series of three posts (here, here and here) drawn from my empirical study on search bias I have examined whether search bias exists, and, if so, how frequently it occurs.  This, the final post in the series, assesses the results of the study (as well as the Edelman & Lockwood (E&L) study to which it responds) to determine whether the own-content bias I’ve identified is in fact consistent with anticompetitive foreclosure or is otherwise sufficient to warrant antitrust intervention.

As I’ve repeatedly emphasized, while I refer to differences among search engines’ rankings of their own or affiliated content as “bias,” without more these differences do not imply anticompetitive conduct.  It is wholly unsurprising and indeed consistent with vigorous competition among engines that differentiation emerges with respect to algorithms.  However, it is especially important to note that the theories of anticompetitive foreclosure raised by Google’s rivals involve very specific claims about these differences.  Properly articulated vertical foreclosure theories proffer both that bias is (1) sufficient in magnitude to exclude Google’s rivals from achieving efficient scale, and (2) actually directed at Google’s rivals.  Unfortunately for search engine critics, their theories fail on both counts.  The observed own-content bias appears neither to be extensive enough to prevent rivals from gaining access to distribution nor does it appear to target Google’s rivals; rather, it seems to be a natural result of intense competition between search engines and of significant benefit to consumers.

Vertical foreclosure arguments are premised upon the notion that rivals are excluded with sufficient frequency and intensity as to render their efforts to compete for distribution uneconomical.  Yet the empirical results simply do not indicate that market conditions are in fact conducive to the types of harmful exclusion contemplated by application of the antitrust laws.  Rather, the evidence indicates that (1) the absolute level of search engine “bias” is extremely low, and (2) “bias” is not a function of market power, but an effective strategy that has arisen as a result of serious competition and innovation between and by search engines.  The first finding undermines competitive foreclosure arguments on their own terms, that is, even if there were no pro-consumer justifications for the integration of Google content with Google search results.  The second finding, even more importantly, reveals that the evolution of consumer preferences for more sophisticated and useful search results has driven rival search engines to satisfy that demand.  Both Bing and Google have shifted toward these results, rendering the complained-of conduct equivalent to satisfying the standard of care in the industry–not restraining competition.

A significant lack of search bias emerges in the representative sample of queries.  This result is entirely unsurprising, given that bias is relatively infrequent even in E&L’s sample of queries specifically designed to identify maximum bias.  In the representative sample, the total percentage of queries for which Google references its own content when rivals do not is even lower—only about 8%—meaning that Google favors its own content far less often than critics have suggested.  This fact is crucial and highly problematic for search engine critics, as their burden in articulating a cognizable antitrust harm includes not only demonstrating that bias exists, but further that it is actually competitively harmful.  As I’ve discussed, bias alone is simply not sufficient to demonstrate any prima facie anticompetitive harm as it is far more often procompetitive or competitively neutral than actively harmful.  Moreover, given that bias occurs in less than 10% of queries run on Google, anticompetitive exclusion arguments appear unsustainable.

Indeed, theories of vertical foreclosure find virtually zero empirical support in the data.  Moreover, it appears that, rather than being a function of monopolistic abuse of power, search bias has emerged as an efficient competitive strategy, allowing search engines to differentiate their products in ways that benefit consumers.  I find that when search engines do reference their own content on their search results pages, it is generally unlikely that another engine will reference this same content.  However, the fact that both this percentage and the absolute level of own content inclusion is similar across engines indicates that this practice is not a function of market power (or its abuse), but is rather an industry standard.  In fact, despite conducting a much smaller percentage of total consumer searches, Bing is consistently more biased than Google, illustrating that the benefits search engines enjoy from integrating their own content into results is not necessarily a function of search engine size or volume of queries.  These results are consistent with a business practice that is efficient and at significant tension with arguments that such integration is designed to facilitate competitive foreclosure. Read the rest of this entry »

Posted in advertising, antitrust, business, economics, exclusionary conduct, google, Internet search, law and economics, monopolization, technology | Tagged: , , , , , , , | 4 Comments »

A Quick Assessment of the FCC’s Appalling Staff Report on the AT&T Merger

Posted by Geoffrey Manne on December 2, 2011

As everyone knows by now, AT&T’s proposed merger with T-Mobile has hit a bureaucratic snag at the FCC.  The remarkable decision to refer the merger to the Commission’s Administrative Law Judge (in an effort to derail the deal) and the public release of the FCC staff’s internal, draft report are problematic and poorly considered.  But far worse is the content of the report on which the decision to attempt to kill the deal was based.

With this report the FCC staff joins the exalted company of AT&T’s complaining competitors (surely the least reliable judges of the desirability of the proposed merger if ever there were any) and the antitrust policy scolds and consumer “advocates” who, quite literally, have never met a merger of which they approved.

In this post I’m going to hit a few of the most glaring problems in the staff’s report, and I hope to return again soon with further analysis.

As it happens, AT&T’s own response to the report is actually very good and it effectively highlights many of the key problems with the staff’s report.  While it might make sense to take AT&T’s own reply with a grain of salt, in this case the reply is, if anything, too tame.  No doubt the company wants to keep in the Commission’s good graces (it is the very definition of a repeat player at the agency, after all).  But I am not so constrained.  Using the company’s reply as a jumping off point, let me discuss a few of the problems with the staff report.

First, as the blog post (written by Jim Cicconi, Senior Vice President of External & Legislative Affairs) notes,

We expected that the AT&T-T-Mobile transaction would receive careful, considered, and fair analysis.   Unfortunately, the preliminary FCC Staff Analysis offers none of that.  The document is so obviously one-sided that any fair-minded person reading it is left with the clear impression that it is an advocacy piece, and not a considered analysis.

In our view, the report raises questions as to whether its authors were predisposed.  The report cherry-picks facts to support its views, and ignores facts that don’t.  Where facts were lacking, the report speculates, with no basis, and then treats its own speculations as if they were fact.  This is clearly not the fair and objective analysis to which any party is entitled, and which we have every right to expect.

OK, maybe they aren’t pulling punches.  The fact that this reply was written with such scathing language despite AT&T’s expectation to have to go right back to the FCC to get approval for this deal in some form or another itself speaks volumes about the undeniable shoddiness of the report.

Cicconi goes on to detail five areas where AT&T thinks the report went seriously awry:  “Expanding LTE to 97% of the U.S. Population,” “Job Gains Versus Losses,” “Deutsche Telekom, T-Mobile’s Parent, Has Serious Investment Constraints,” “Spectrum” and “Competition.”  I have dealt with a few of these issues at some length elsewhere, including most notably here (noting how the FCC’s own wireless competition report “supports what everyone already knows: falling prices, improved quality, dynamic competition and unflagging innovation have led to a golden age of mobile services”), and here (“It is troubling that critics–particularly those with little if any business experience–are so certain that even with no obvious source of additional spectrum suitable for LTE coming from the government any time soon, and even with exponential growth in broadband (including mobile) data use, AT&T’s current spectrum holdings are sufficient to satisfy its business plans”).

What is really galling about the staff report—and, frankly, the basic posture of the agency—is that its criticisms really boil down to one thing:  “We believe there is another way to accomplish (something like) what AT&T wants to do here, and we’d just prefer they do it that way.”  This is central planning at its most repugnant.  What is both assumed and what is lacking in this basic posture is beyond the pale for an allegedly independent government agency—and as Larry Downes notes in the linked article, the agency’s hubris and its politics may have real, costly consequences for all of us.

Competition

But procedure must be followed, and the staff thus musters a technical defense to support its basic position, starting with the claim that the merger will result in too much concentration.  Blinded by its new-found love for HHIs, the staff commits a few blunders.  First, it claims that concentration levels like those in this case “trigger a presumption of harm” to competition, citing the DOJ/FTC Merger Guidelines.  Alas, as even the report’s own footnotes reveal, the Merger Guidelines actually say that highly concentrated markets with HHI increases of 200 or more trigger a presumption that the merger will “enhance market power.”  This is not, in fact, the same thing as harm to competition.  Elsewhere the staff calls this—a merger that increases concentration and gives one firm an “undue” share of the market—“presumptively illegal.”  Perhaps the staff could use an antitrust refresher course.  I’d be happy to come teach it.

Not only is there no actual evidence of consumer harm resulting from the sort of increases in concentration that might result from the merger, but the staff seems to derive its negative conclusions despite the damning fact that the data shows that wireless markets have seen considerable increases in concentration along with considerable decreases in prices, rather than harm to competition, over the last decade.  While high and increasing HHIs might indicate a need for further investigation, when actual evidence refutes the connection between concentration and price, they simply lose their relevance.  Someone should tell the FCC staff.

This is a different Wireless Bureau than the one that wrote so much sensible material in the 15th Annual Wireless Competition Report.  That Bureau described a complex, dynamic, robust mobile “ecosystem” driven not by carrier market power and industrial structure, but by rapid evolution and technological disruptors.  The analysis here wishes away every important factor that every consumer knows to be the real drivers of price and innovation in the mobile marketplace, including, among other things:

  1. Local markets, where there are five, six, or more carriers to choose from;
  2. Non-contract/pre-paid providers, whose strength is rapidly growing;
  3. Technology that is making more bands of available spectrum useful for competitive offerings;
  4. The reality that LTE will make inter-modal competition a reality; and
  5. The reality that churn is rampant and consumer decision-making is driven today by devices, operating systems, applications and content – not networks.

The resulting analysis is stilted and stale, and describes a wireless industry that exists only in the agency’s collective imagination.

There is considerably more to say about the report’s tortured unilateral effects analysis, but it will have to wait for my next post.  Here I want to quickly touch on a two of the other issues called out by Cicconi’s blog post. Read the rest of this entry »

Posted in antitrust, business, law and economics, merger guidelines, regulation, technology, telecommunications | Tagged: , , , | 3 Comments »

Kahneman’s Time Interview Fails to Allay Concerns About Behavioral Law and Economics

Posted by Thom Lambert on November 28, 2011

TOTM alumnus Todd Henderson recently pointed me to a short, ten-question interview Time Magazine conducted with Nobel prize-winning economist Daniel Kahneman.  Prof. Kahneman is a founding father of behavioral economics, which rejects the rational choice model of human behavior (i.e., humans are rational self-interest maximizers) in favor of a more complicated model that incorporates a number of systematic irrationalities (e.g., the so-called endowment effect, under which people value items they own more than they’d be willing to pay to acquire those same items if they didn’t own them). 

 I’ve been interested in behavioral economics since I took Cass Sunstein’s “Elements of the Law” course as a first-year law student.  Prof. Sunstein is a leading figure in the “behavioral law and economics” movement, which advocates structuring laws and regulations to account for the various irrationalities purportedly revealed by behavioral economics.  Most famously, behavioral L&E calls for the imposition of default rules that “nudge” humans toward outcomes they’d likely choose but for the irrationalities and myopia with which they are beset.

 I’ve long been somewhat suspicious of the behavioral L&E project.  As I once explained in a short response essay entitled Two Mistakes Behavioralists Make,  I suspect that behavioral L&E types are too quick to reject rational explanations for observed human behavior and that they too hastily advocate a governmental fix for irrational behavior.  Time’s interview with Prof. Kahneman did little to allay those two concerns.

Asked to identify his “favorite experiment that demonstrates our blindness to our own blindness,” Prof. Kahneman responded:

It’s one someone else did.  During [the ’90s] when there was terrorist activity in Thailand, people were asked how much they’d pay for a travel-insurance policy that pays $100,000 in case of death for any reason.  Others were asked how much they’d pay for a policy that pays $100,000 for death in a terrorist act.  And people will pay more for the second, even though it’s less likely.

 This answer pattern is admittedly strange.  Since death from a terrorist attack is, a fortiori, less likely than death from any cause, it makes no sense to pay the same amount for the two insurance policies; the “regardless of cause” life insurance policy should command a far higher price.  So maybe people are wildly irrational in comparing risks and the value of risk mitigation measures.

 Or maybe, as boundedly rational (but not systematically irrational) beings, they just don’t want to waste effort answering silly, hypothetical questions about the maximum amount they’d pay for stuff.  I remember exercises in Prof. Sunstein’s class in which we were split into groups and asked to state either how much we’d pay to obtain a certain object or, assuming we owned the object, how much we’d demand as a sales price.  I distinctly recall thinking how artificial the question was.  Given the low stakes of the exercise, I quickly wrote down some number and returned to thinking about what I would have for lunch, what was going to be on Sunstein’s exam, and whether I had adequately prepared for my next class.  I suspect my classmates did as well.  Was it not fully rational for us to conserve our limited mental resources by giving quick, thoughtless answers to wholly hypothetical, zero-stakes questions?

If so, then there are two possible reasons for subjects’ strange answers to the terrorism insurance questions Kahneman cites:  Subjects could be wildly irrational with respect to risk assessment and the value of protective measures, or they might rationally choose to give hasty answers to silly questions that don’t matter.  What we need is some way to choose between these irrational and rational accounts of the answer pattern.

Perhaps the best thing to do would be to examine people’s revealed preferences by looking at what they actually do when they’re spending money to protect against risk.  If Kahneman’s explanation for subjects’ strange answers were sound, we’d see people paying hefty premiums for terrorism insurance.  Profit-seeking insurance companies, in turn, would scramble to create and market such risk protection, realizing that they could charge irrational consumers far more than their expected liabilities.  But we don’t see this sort of thing.

That suggests that the alternative, “rational” (or at least not systematically irrational) account is the more compelling story:  Subjects pestered with questions about how much hypothetical money they’d spend on hypothetical insurance products decide not to invest too much in the decision and just spit out an answer.  As we all learn as kids, you a ask a silly question, you get a silly answer.

So again we see the behavioralist tendency to discount the rational account too quickly.  But what about the second common behavioralist mistake (i.e., hastily jumping from an observation about human irrationality to the conclusion that a governmental fix is warranted)?  On that issue, consider this portion of the interview:

Time:  You endorse a kind of libertarian paternalism that gives people freedom of choice but frames the choice so they are nudged toward the option that’s better for them.  Are you worried that experts will misuse that?

Kahneman:  What psychology and behavioral economics have shown is that people don’t think very carefully.  They’re influenced by all sorts of superficial things in their decisionmaking, and they procrastinate and don’t read the small print.  You’ve got to create situations so they’ll make better decisions for themselves.

Could Prof. Kahneman have been more evasive?  The question was about an obvious downside of governmental intervention to correct for systematic irrationalities, but Prof. Kahneman, channeling Herman “9-9-9” Cain, just ignored it and repeated his affirmative case.  This is a serious problem for the behavioral L&E crowd:  They think they’re done once they convince you that humans exhibit some irrationalities.  But they’re not.  Just as one may believe in anthropogenic global warming and still oppose efforts to combat it on cost-benefit grounds, one may be skeptical of a nudge strategy even if one believes that humans may, in fact, exhibit some systematic irrationalities.  Individual free choice may have its limits, but governmental decisionmaking (executed by self-serving humans whose own rationality is limited) may amount to a cure that’s worse than the disease.

Readers interested in the promise and limitations of behavioral law and economics should check out TOTM’s all-star Free to Choose Symposium.

 

Posted in behavioral economics, behavioral economics, economics, free to choose symposium, law and economics, nobel prize, regulation | 7 Comments »

How Much Search Bias Is There?

Posted by Josh Wright on November 22, 2011

My last two posts on search bias (here and here) have analyzed and critiqued Edelman & Lockwood’s small study on search bias.  This post extends this same methodology and analysis to a random sample of 1,000 Google queries (released by AOL in 2006), to develop a more comprehensive understanding of own-content bias.  As I’ve stressed, these analyses provide useful—but importantly limited—glimpses into the nature of the search engine environment.  While these studies are descriptively helpful, actual harm to consumer welfare must always be demonstrated before cognizable antitrust injuries arise.  And naked identifications of own-content bias simply do not inherently translate to negative effects on consumers (see, e.g., here and here for more comprehensive discussion).

Now that’s settled, let’s jump into the results of the 1,000 random search query study.

How Do Search Engines Rank Their Own Content?

Consistent with our earlier analysis, a starting off point for thinking about measuring differentiation among search engines with respect to placing their own content is to compare how a search engine ranks its own content relative to how other engines place that same content (e.g. to compare how Google ranks “Google Maps” relative to how Bing or Blekko rank it).   Restricting attention exclusively to the first or “top” position, I find that Google simply does not refer to its own content in over 90% of queries.  Similarly, Bing does not reference Microsoft content in 85.4% of queries.  Google refers to its own content in the first position when other search engines do not in only 6.7% of queries; while Bing does so over twice as often, referencing Microsoft content that no other engine references in the first position in 14.3% of queries.  The following two charts illustrate the percentage of Google or Bing first position results, respectively, dedicated to own content across search engines.

The most striking aspect of these results is the small fraction of queries for which placement of own-content is relevant.  The results are similar when I expand consideration to the entire first page of results; interestingly, however, while the levels of own-content bias are similar considering the entire first page of results, Bing is far more likely than Google to reference its own content in its very first results position.

Examining Search Engine “Bias” on Google

Two distinct differences between the results of this larger study and my replication of Edelman & Lockwood emerge: (1) Google and Bing refer to their own content in a significantly smaller percentage of cases here than in the non-random sample; and (2) in general, when Google or Bing does rank its own content highly, rival engines are unlikely to similarly rank that same content.

The following table reports the percentages of queries for which Google’s ranking of its own content and its rivals’ rankings of that same content differ significantly. When Google refers to its own content within its Top 5 results, at least one other engine similarly ranks this content for only about 5% of queries.

The following table presents the likelihood that Google content will appear in a Google search, relative to searches conducted on rival engines (reported in odds ratios).

The first and third columns report results indicating that Google affiliated content is more likely to appear in a search executed on Google rather than rival engines.  Google is approximately 16 times more likely to refer to its own content on its first page as is any other engine.  Bing and Blekko are both significantly less likely to refer to Google content in their first result or on their first page than Google is to refer to Google content within these same parameters.  In each iteration, Bing is more likely to refer to Google content than is Blekko, and in the case of the first result, Bing is much more likely to do so.  Again, to be clear, the fact that Bing is more likely to rank its own content is not suggestive that the practice is problematic.  Quite the contrary, the demonstration that firms both with and without market power in search (to the extent that is a relevant antitrust market) engage in similar conduct the correct inference is that there must be efficiency explanations for the practice.  The standard response, of course, is that the competitive implications of a practice are different when a firm with market power does it.  That’s not exactly right.  It is true that firms with market power can engage in conduct that gives rise to potential antitrust problems when the same conduct from a firm without market power would not; however, when firms without market power engage in the same business practice it demands that antitrust analysts seriously consider the efficiency implications of the practice.  In other words, there is nothing in the mantra that things are “different” when larger firms do them that undercut potential efficiency explanations.

Examining Search Engine “Bias” on Bing

For queries within the larger sample, Bing refers to Microsoft content within its Top 1 and 3 results when no other engine similarly references this content for a slightly smaller percentage of queries than in my Edelman & Lockwood replication.  Yet Bing continues to exhibit a strong tendency to rank Microsoft content more prominently than rival engines.  For example, when Bing refers to Microsoft content within its Top 5 results, other engines agree with this ranking for less than 2% of queries; and Bing refers to Microsoft content that no other engine does within its Top 3 results for 99.2% of queries:

Regression analysis further illustrates Bing’s propensity to reference Microsoft content that rivals do not.  The following table reports the likelihood that Microsoft content is referred to in a Bing search as compared to searches on rival engines (again reported in odds ratios).

Bing refers to Microsoft content in its first results position about 56 times more often than rival engines refer to Microsoft content in this same position.  Across the entire first page, Microsoft content appears on a Bing search about 25 times more often than it does on any other engine.  Both Google and Blekko are accordingly significantly less likely to reference Microsoft content.  Notice further that, contrary to the findings in the smaller study, Google is slightly less likely to return Microsoft content than is Blekko, both in its first results position and across its entire first page.

A Closer Look at Google v. Bing

 Consistent with the smaller sample, I find again that Bing is more biased than Google using these metrics.  In other words, Bing ranks its own content significantly more highly than its rivals do more frequently then Google does, although the discrepancy between the two engines is smaller here than in the study of Edelman & Lockwood’s queries.  As noted above, Bing is over twice as likely to refer to own content in first results position than is Google.

Figures 7 and 8 present the same data reported above, but with Blekko removed, to allow for a direct visual comparison of own-content bias between Google and Bing.

Consistent with my earlier results, Bing appears to consistently rank Microsoft content higher than Google ranks the same (Microsoft) content more frequently than Google ranks Google content more prominently than Bing ranks the same (Google) content.

This result is particularly interesting given the strength of the accusations condemning Google for behaving in precisely this way.  That Bing references Microsoft content just as often as—and frequently even more often than!—Google references its own content strongly suggests that this behavior is a function of procompetitive product differentiation, and not abuse of market power.  But I’ll save an in-depth analysis of this issue for my next post, where I’ll also discuss whether any of the results reported in this series of posts support anticompetitive foreclosure theories or otherwise suggest antitrust intervention is warranted.

Posted in antitrust, economics, google, Internet search, law and economics, technology | Tagged: , , , , , | 1 Comment »

Mason LEC Programs for Economics & Law Professors

Posted by Josh Wright on November 17, 2011

The George Mason LEC has reinstituted the Economics Institute for Law Professors and the Law Institute for Economics Professors.  I will be attending as faculty  for the Economic Institute for Law Professors, where I will teach various aspects of microeconomic theory along with Michael Baye.  The agenda for that program is available here.

If you’ve got questions about either program, please feel free to contact me.

Details and links for both programs are below:

Economics Institute for Law Professors and Law Institute for Economics Professors

July 2012, Estes Park, Colorado

The Henry G. Manne Program in Law & Economics Studies at the George Mason Law & Economics Center is pleased to announce the following programs:

  • Twenty-Eighth Economics Institute for Law Professors
  • Sixteenth Law Institute for Economics Professors.

The programs will run concurrently from Sunday, July 15 to Friday, July 27, 2012, and will be held at the historic Stanley Hotel in Estes Park, Colorado.

There is no tuition, and room, group meals, and reading materials are provided by the Law & Economics Center.

The application deadline for both programs is December 1, 2011.

Please apply on the Law & Economics Center’s website now:

Twenty-Eighth Economics Institute for Law Professors

Sixteenth Law Institute for Economics Professors 

Posted in economics, law and economics | Comments Off

Extending & Rebutting Edelman & Lockwood on Search Bias

Posted by Josh Wright on November 9, 2011

In my last post, I discussed Edelman & Lockwood’s (E&L’s) attempt to catch search engines in the act of biasing their results—as well as their failure to actually do so.  In this post, I present my own results from replicating their study.  Unlike E&L, I find that Bing is consistently more biased than Google, for reasons discussed further below, although neither engine references its own content as frequently as E&L suggest.

I ran searches for E&L’s original 32 non-random queries using three different search engines—Google, Bing, and Blekko—between June 23 and July 5 of this year.  This replication is useful, as search technology has changed dramatically since E&L recorded their results in August 2010.  Bing now powers Yahoo, and Blekko has had more time to mature and enhance its results.  Blekko serves as a helpful “control” engine in my study, as it is totally independent of Google and Microsoft, and so has no incentive to refer to Google or Microsoft content unless it is actually relevant to users.  In addition, because Blekko’s model is significantly different than Google and Microsoft’s, if results on all three engines agree that specific content is highly relevant to the user query, it lends significant credibility to the notion that the content places well on the merits rather than being attributable to bias or other factors.

How Do Search Engines Rank Their Own Content?

Focusing solely upon the first position, Google refers to its own products or services when no other search engine does in 21.9% of queries; in another 21.9% of queries, both Google and at least one other search engine rival (i.e. Bing or Blekko) refer to the same Google content with their first links.

But restricting focus upon the first position is too narrow.  Assuming that all instances in which Google or Bing rank their own content first and rivals do not amounts to bias would be a mistake; such a restrictive definition would include cases in which all three search engines rank the same content prominently—agreeing that it is highly relevant—although not all in the first position. 

The entire first page of results provides a more informative comparison.  I find that Google and at least one other engine return Google content on the first page of results in 7% of the queries.  Google refers to its own content on the first page of results without agreement from either rival search engine in only 7.9% of the queries.  Meanwhile, Bing and at least one other engine refer to Microsoft content in 3.2% of the queries.  Bing references Microsoft content without agreement from either Google or Blekko in 13.2% of the queries:

This evidence indicates that Google’s ranking of its own content differs significantly from its rivals in only 7.9% of queries, and that when Google ranks its own content prominently it is generally perceived as relevant.  Further, these results suggest that Bing’s organic search results are significantly more biased in favor of Microsoft content than Google’s search results are in favor of Google’s content.

Examining Search Engine “Bias” on Google

The following table presents the percentages of queries for which Google’s ranking of its own content differs significantly from its rivals’ ranking of that same content.

Note that percentages below 50 in this table indicate that rival search engines generally see the referenced Google content as relevant and independently believe that it should be ranked similarly.

So when Google ranks its own content highly, at least one rival engine typically agrees with this ranking; for example, when Google places its own content in its Top 3 results, at least one rival agrees with this ranking in over 70% of queries.  Bing especially agrees with Google’s rankings of Google content within its Top 3 and 5 results, failing to include Google content that Google ranks similarly in only a little more than a third of queries.

Examining Search Engine “Bias” on Bing

Bing refers to Microsoft content in its search results far more frequently than its rivals reference the same Microsoft content.  For example, Bing’s top result references Microsoft content for 5 queries, while neither Google nor Blekko ever rank Microsoft content in the first position:

This table illustrates the significant discrepancies between Bing’s treatment of its own Microsoft content relative to Google and Blekko.  Neither rival engine refers to Microsoft content Bing ranks within its Top 3 results; Google and Blekko do not include any Microsoft content Bing refers to on the first page of results in nearly 80% of queries.

Moreover, Bing frequently ranks Microsoft content highly even when rival engines do not refer to the same content at all in the first page of results.  For example, of the 5 queries for which Bing ranks Microsoft content in its top result, Google refers to only one of these 5 within its first page of results, while Blekko refers to none.  Even when comparing results across each engine’s full page of results, Google and Blekko only agree with Bing’s referral of Microsoft content in 20.4% of queries.

Although there are not enough Bing data to test results in the first position in E&L’s sample, Microsoft content appears as results on the first page of a Bing search about 7 times more often than Microsoft content appears on the first page of rival engines.  Also, Google is much more likely to refer to Microsoft content than Blekko, though both refer to significantly less Microsoft content than Bing.

A Closer Look at Google v. Bing

On E&L’s own terms, Bing results are more biased than Google results; rivals are more likely to agree with Google’s algorithmic assessment (than with Bing’s) that its own content is relevant to user queries.  Bing refers to Microsoft content other engines do not rank at all more often than Google refers its own content without any agreement from rivals.  Figures 1 and 2 display the same data presented above in order to facilitate direct comparisons between Google and Bing.

As Figures 1 and 2 illustrate, Bing search results for these 32 queries are more frequently “biased” in favor of its own content than are Google’s.  The bias is greatest for the Top 1 and Top 3 search results.

My study finds that Bing exhibits far more “bias” than E&L identify in their earlier analysis.  For example, in E&L’s study, Bing does not refer to Microsoft content at all in its Top 1 or Top 3 results; moreover, Bing refers to Microsoft content within its entire first page 11 times, while Google and Yahoo refer to Microsoft content 8 and 9 times, respectively.  Most likely, the significant increase in Bing’s “bias” differential is largely a function of Bing’s introduction of localized and personalized search results and represents serious competitive efforts on Bing’s behalf.

Again, it’s important to stress E&L’s limited and non-random sample, and to emphasize the danger of making strong inferences about the general nature or magnitude of search bias based upon these data alone.  However, the data indicate that Google’s own-content bias is relatively small even in a sample collected precisely to focus upon the queries most likely to generate it.  In fact—as I’ll discuss in my next post—own-content bias occurs even less often in a more representative sample of queries, strongly suggesting that such bias does not raise the competitive concerns attributed to it.

Posted in antitrust, business, economics, google, Internet search, law and economics, monopolization, technology | Tagged: , , , , , , , , | 1 Comment »

Investigating Search Bias: Measuring Edelman & Lockwood’s Failure to Measure Bias in Search

Posted by Josh Wright on November 8, 2011

Last week I linked to my new study on “search bias.”  At the time I noted I would have a few blog posts in the coming days discussing the study.  This is the first of those posts.

A lot of the frenzy around Google turns on “search bias,” that is, instances when Google references its own links or its own content (such as Google Maps or YouTube) in its search results pages.  Some search engine critics condemn such references as inherently suspect and almost by their very nature harmful to consumers.  Yet these allegations suffer from several crucial shortcomings.  As I’ve noted (see, e.g., here and here), these naked assertions of discrimination are insufficient to state a cognizable antitrust claim, divorced as they are from consumer welfare analysis.  Indeed, such “discrimination” (some would call it “vertical integration”) has a well-recognized propensity to yield either pro-competitive or competitively neutral outcomes, rather than concrete consumer welfare losses.  Moreover, because search engines exist in an incredibly dynamic environment, marked by constant innovation and fierce competition, we would expect different engines, utilizing different algorithms and appealing to different consumer preferences, to emerge.  So when search engines engage in product differentiation of this sort, there is no reason to be immediately suspicious of these business decisions.

No reason to be immediately suspicious – but there could, conceivably, be a problem.  If there is, we would want to see empirical evidence of it—of both the existence of bias, as well as the consumer harm emanating from it.  But one of the most notable features of this debate is the striking lack of empirical data.  Surprisingly little research has been done in this area, despite frequent assertions that own-content bias is commonly practiced and poses a significant threat to consumers (see, e.g., here).

My paper is an attempt to rectify this.  In the paper, I investigate the available data to determine whether and to what extent own-content bias actually occurs, by analyzing and replicating a study by Ben Edelman and Ben Lockwood (E&L) and conducting my own study of a larger, randomized set of search queries.

In this post I discuss my analysis and critique of E&L; in future posts I’ll present my own replication of their study, as well as the results of my larger study of 1,000 random search queries.  Finally, I’ll analyze whether any of these findings support anticompetitive foreclosure theories or are otherwise sufficient to warrant antitrust intervention.

E&L “investigate . . . [w]hether search engines’ algorithmic results favor their own services, and if so, which search engines do most, to what extent, and in what substantive areas.”  Their approach is to measure the difference in how frequently search engines refer to their own content relative to how often their rivals do so.

One note at the outset:  While this approach provides useful descriptive facts about the differences between how search engines link to their own content, it does little to inform antitrust analysis because Edelman and Lockwood begin with the rather odd claim that competition among differentiated search engines for consumers is a puzzle that creates an air of suspicion around the practice—in fact, they claim that “it is hard to see why results would vary . . . across search engines.”  This assertion, of course, is simply absurd.  Indeed, Danny Sullivan provides a nice critique of this claim:

It’s not hard to see why search engine result differ at all.  Search engines each use their own “algorithm” to cull through the pages they’ve collected from across the web, to decide which pages to rank first . . . . Google has a different algorithm than Bing.  In short, Google will have a different opinion than Bing.  Opinions in the search world, as with the real world, don’t always agree.

Moreover, this assertion completely discounts both the vigorous competitive product differentiation that occurs in nearly all modern product markets as well as the obvious selection effects at work in own-content bias (Google users likely prefer Google content).  This combination detaches E&L’s analysis from the consumer welfare perspective, and thus antitrust policy relevance, despite their claims to the contrary (and the fact that their results actually exhibit very little bias).

Several methodological issues undermine the policy relevance of E&L’s analysis.  First, they hand select 32 search queries and execute searches on Google, Bing, Yahoo, AOL and Ask.  This hand-selected non-random sample of 32 search queries cannot generate reliable inferences regarding the frequency of bias—a critical ingredient to understanding its potential competitive effects.  Indeed, E&L acknowledge their queries are chosen precisely because they are likely to return results including Google content (e.g., email, images, maps, video, etc.).

E&L analyze the top three organic search results for each query on each engine.  They find that 19% of all results across all five search engines refer to content affiliated with one of them.  They focus upon the first three organic results and report that Google refers to its own content in the first (“top”) position about twice as often as Yahoo and Bing refer to Google content in this position.  Additionally, they note that Yahoo is more biased than Google when evaluating the first page rather than only the first organic search result.

E&L also offer a strained attempt to deal with the possibility of competitive product differentiation among search engines.  They examine differences among search engines’ references to their own content by “compar[ing] the frequency with which a search engine links to its own pages, relative to the frequency with which other search engines link to that search engine’s pages.”  However, their evidence undermines claims that Google’s own-content bias is significant and systematic relative to its rivals’.  In fact, almost zero evidence of statistically significant own-content bias by Google emerges.

E&L find, in general, Google is no more likely to refer to its own content than other search engines are to refer to that same content, and across the vast majority of their results, E&L find Google search results are not statistically more likely to refer to Google content than rivals’ search results.

The same data can be examined to test the likelihood that a search engine will refer to content affiliated with a rival search engine.  Rather than exhibiting bias in favor of an engine’s own content, a “biased” search engine might conceivably be less likely to refer to content affiliated with its rivals.  The table below reports the likelihood (in odds ratios) that a search engine’s content appears in a rival engine’s results.

The first two columns of the table demonstrate that both Google and Yahoo content are referred to in the first search result less frequently in rivals’ search results than in their own.  Although Bing does not have enough data for robust analysis of results in the first position in E&L’s original analysis, the next three columns in Table 1 illustrate that all three engines’ (Google, Yahoo, and Bing) content appears less often on the first page of rivals’ search results than on their own search engine.  However, only Yahoo’s results differ significantly from 1.  As between Google and Bing, the results are notably similar.

E&L also make a limited attempt to consider the possibility that favorable placement of a search engine’s own content is a response to user preferences rather than anticompetitive motives.  Using click-through data, they find, unsurprisingly, that the first search result tends to receive the most clicks (72%, on average).  They then identify one search term for which they believe bias plays an important role in driving user traffic.  For the search query “email,” Google ranks its own Gmail first and Yahoo Mail second; however, E&L also find that Gmail receives only 29% of clicks while Yahoo Mail receives 54%.  E&L claim that this finding strongly indicates that Google is engaging in conduct that harms users and undermines their search experience.

However, from a competition analysis perspective, that inference is not sound.  Indeed, the fact that the second-listed Yahoo Mail link received the majority of clicks demonstrates precisely that Yahoo was not competitively foreclosed from access to users.  Taken collectively, E&L are not able to muster evidence of potential competitive foreclosure.

While it’s important to have an evidence-based discussion surrounding search engine results and their competitive implications, it’s also critical to recognize that bias alone is not evidence of competitive harm.  Indeed, any identified bias must be evaluated in the appropriate antitrust economic context of competition and consumers, rather than individual competitors and websites.  E&L’s analysis provides a useful starting point for describing how search engines differ in their referrals to their own content.  But, taken at face value, their results actually demonstrate little or no evidence of bias—let alone that the little bias they do find is causing any consumer harm.

As I’ll discuss in coming posts, evidence gathered since E&L conducted their study further suggests their claims that bias is prevalent, inherently harmful, and sufficient to warrant antitrust intervention are overstated and misguided.

Posted in antitrust, business, economics, google, Internet search, law and economics, monopolization, technology | Tagged: , , , , , , , , | 2 Comments »

Long-Term Research Agendas in Economics (and Law and Economics?)

Posted by Josh Wright on November 2, 2011

The NSF has posted responses to its call for “Long-Term Research Agendas.”  HT: Peter Klein. The entire set is available here.  Here’s the description:

This is a compendium of fifty-four papers written by distinguished economists in response to an invitation by the National Science Foundation’s Directorate for the Social, Behavioral and Economic Sciences (NSF/SBE) to economists and relevant research communities in August 2010 to write white papers that describe grand challenge questions in their sciences that transcend near-term funding cycles and are “likely to drive next generation research in the social, behavioral, and economic sciences.” These papers offer a number of exciting and at times provocative ideas about future research agendas in economics. The papers could also generate compelling ideas for infrastructure projects, new methodologies and important research topics.

Peter points to a handful that are also likely to interest readers here at TOTM:

Challenges for Social Sciences: Institutions and Economic Development
Daron Acemoglu

Making the Case for Contract Theory
Oliver Hart

Research Opportunities in Social and Economic Networks
Matthew O. Jackson

The Economics of Digitization: An Agenda for NSF
Shane M. Greenstein, Josh Lerner, and Scott Stern

The Productivity Grand Challenge: Why Do Organizations Differ so Much?
John Van Reenen

In addition, I thought I’d highlight a few more that caught my attention:

A Proposal for Future SBE/NSF Funded Research: Refocusing Microeconomic Policy Research
American Economic Association, Ten Years and Beyond: Economists Answer NSF’s Call for Long-Term Research Agendas
Steven Berry

A Research Agenda for Development Economics
American Economic Association, Ten Years and Beyond: Economists Answer NSF’s Call for Long-Term Research Agendas
Esther Duflo

Challenges in Econometrics
American Economic Association, Ten Years and Beyond: Economists Answer NSF’s Call for Long-Term Research Agendas
Guido W. Imbens

Implications of the Financial Crisis
American Economic Association, Ten Years and Beyond: Economists Answer NSF’s Call for Long-Term Research Agendas
Randall Krozsner

What is the Right Amount of Choice?
American Economic Association, Ten Years and Beyond: Economists Answer NSF’s Call for Long-Term Research Agendas
Jonathan Gruber

Clinical Trials in Economics
American Economic Association, Ten Years and Beyond: Economists Answer NSF’s Call for Long-Term Research Agendas
Hal R. Varian

 

A question for our readers: What would be the most compelling long-term research agendas for law & economics?

Posted in economics, law and economics | Comments Off

 
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