The new Google-commissioned paper, written by well-known UCLA law professor Eugene Volokh and attorney Donald Falk, argues that such regulations would be preempted by the First Amendment. Google's search engine, they write, "uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers' judgments about what material users are likely to find responsive to these queries."<p>

The authors argue that this selection process is no different, constitutionally speaking, from a newspaper editor selecting wire stories to run, a guidebook deciding which attractions to feature, or a parade organizer choosing which floats to include. The courts have ruled that all of these editorial processes are fully protected by the First Amendment.

True, but misses the point. The FTC's beef is with Google cross-promoting products such as its Google shopping comparison, or maps, or video, in its search results. When Google doesn't have a competitor in a space, the other product appears highly in search results. As soon as Google has a product, the rival vanishes from useful search results. Using the monopoly (search) to demote others in a space is, arguably, abuse of monopoly power.

Microsoft's promotion in the 1990s of Internet Explorer on Windows used its engineers' judgements about what material users would find useful in browsing the web, but that didn't stop it being an abuse of monopoly. (Thanks @modelportfolio2003 for the link.)

"Once Swartz had been collared, JSTOR declined to pursue charges against him... Indeed JSTOR immediately made a public statement to the effect that they have no beef with Swartz. There are two obvious reasons why the Feds decided to pursue criminal charges anyway. The first is that the Feds were already pissed off at Swartz and were just waiting for a chance to go after him.<br />
"In 2008, Swartz, taking advantage of a free trial of PACER, a government database of court records, cleverly automated a download of nearly 20 million documents. This was in response to the call of information activist Carl Malamud for donations of downloaded PACER documents, which ordinarily cost eight cents per page. Malamud's position is that since the public owns these documents, access to them should be easy and free of charge online. In the event, Swartz hadn't broken any laws, so the Feds were forced to drop their investigation. Perhaps a certain resentment lingered."

"When we issue email alerts on an imminent change in law that is likely to have a wide impact on normal business activities, we seek to give clear guidance on what steps must be taken for compliance with the new law.<br />
"Regrettably, this is rather difficult to do for the new law on the use of cookies, which comes into effect on 26 May 2011."<br />
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This is a horrendous mess.