Monday, September 17, 2012

Siri: is this lawsuit too clever by half? Maybe, but maybe not.

"Siri: Tell me whether you're in sales."

That may be a question that no one with an iPhone 4S has ever asked. But for at least one plaintiff in San Francisco, it's a question that Siri should answer honestly.

When the iPhone 4S was first released one of the biggest innovations was the voice-activated search engine called Siri. You could ask Siri anything and it would give an answer. Sometimes snarky, sometimes accurate. And to the Apple fans, always amazing.

If you leave a piece of technology long enough (which I would define as: about 5 minutes), people will start to try to subvert it. No surprise to see that happen with Siri. The Internet briefly got very excited about the idea that, if you asked Siri what was the best smartphone, it would give the Nokia Lumia as its answer.

Perhaps not surprisingly, that result didn't last. Apparently now, if you ask Siri what's the best smartphone, it will reply with "iPhone". It also indicates that the answer is sponsored: not surprising, because Apple has probably made sure that iPhone will be the only answer provided for that question. [UPDATE: Apparently this is something the linked article created; Siri doesn't indicate it as sponsored.]

That may seem perfectly acceptable. After all, you can't expect Apple to promote its competitors. But at least one iPhone 4S purchaser would disagree. Sean deVries, a law student from San Francisco, has sued Apple seeking to have his iPhone 4S purchase price refunded, to have his Sprint contract annulled, and to have Apple be required to say in its Siri-based advertisements that its results may be changed to accommodate advertisers or other sponsors.

And although I'm not sure that this particular plaintiff will win his lawsuit, I do think he raises some very interesting issues.

Why don't I think he will win? Unlike the FTC, which can sue on a generally misleading advertisement, a private plaintiff has to show that (in this case) he himself was misled by the advertisement. That is, it's not enough for deVries to say "Siri has sponsored links", he has to say "When I bought my iPhone I did so because I thought Siri would be unbiased, and had I known that this wasn't true I would never have bought it." That's pretty hard to show, because it requires him effectively to prove that he bought his iPhone solely because he wanted to use it to find out whether he made a good decision when buying his iPhone. Not surprisingly, I think he's going to have a hard time there.

Why is this lawsuit is interesting nonetheless? Because it raises an issue that's hiding under the surface for any search engine. Is Bing required to return Google sites before Microsoft ones if they are the ones that are most-used by consumers? Or should Google put itself before Yelp?

There's a legitimate question about whether search engines are required to be truly neutral. On a certain level we all assume that they are. But are they legally required to be? They make no representations either way. The Terms of Service for Google never once promise that you'll get the "best" results. Ditto for Bing. So what exactly are search engines promising you?

Not a lot of people know that in response to some antitrust claims Google has actually hired constitutional law scholar Eugene Volokh to answer that question. He believes that search results have First Amendment protection, because they represent the editorial selection of Google's algorithm: saying that Result A is more relevant than Result B requires a decision of what "relevance" means. But Google has never promised that its results aren't skewed by other objectives, so this is a defensible position for Google.

I don't have an encyclopedic knowledge of Apple's advertising for Siri. But it's possible that they might have problems that Google doesn't.

I'm pretty sure that Sean deVries won't win his lawsuit. But if he were to bring this argument, it might open some pretty interesting lines of inquiry. And search engine providers might not like where they end.

Story reporting on Siri litigation:
Volokh blog entry on Google First Amendment paper:


Thanks for commenting. Posts and comments aren't legal advice; requests for legal advice in the comment probably won't get answered. Sorry to have to do this but someone someday is going to make me glad I did...