Google and its subsidiary, YouTube, are state actors. The attorneys for PragerU and others could not prove that because they are not familiar with the industry, especially its technical side. The Obama Administration has delegated to Google (together with Facebook, Twitter, Microsoft, and Netflix) "powers traditionally exclusively reserved to the State" and “traditionally associated with sovereignty” (Jackson v. Metropolitan Edison Co., 419 US 345 - Supreme Court 1974). Then, those actors usurped more powers.

The smoking gun can be found in the FCC Obamanet orders of 2010 and 2015. The 2015 Obamanet Order, officially called Open Internet Order, has explicitly obligated all internet users to pay a tax to Google and YouTube in their ISP and wireless data fees. The Order even mentions Google and YouTube by name. The tax incurs tens of billions of dollars per year. More specifically, the Order said that by paying ISP fees (including mobile wireless), each user also pays for the services that ISP gives to platforms and content providers like YouTube, even if the user doesn’t use them.

As discussed further below, we make clear that broadband Internet access service encompasses this service to edge providers. (p. 10)

Platforms and content providers are misleadingly called “edge providers” here. Thus, every ISP customer in the US is obligated to pay for the traffic generated by Google, Netflix, Facebook, and Twitter, even if he used none of them! The Order even references the main beneficiaries by name!

Netflix and YouTube alone account for 50 percent of peak Internet download traffic in North America. (p.154)

Peak traffic is what determines the cost of the network’s buildup and, ultimately, the ISP fees paid by the consumers. Total fixed broadband is a $60 Billion annual business and half of it was earmarked to Netflix and Google’s YouTube. On top of it, Netflix and YouTube became beneficiaries of a lower percentage of the $90 Billion annual wireless data business. The Order mentions Google and YouTube by name 43 and 16 times, respectively (including comments and FCC members opinions). In US Telecom Association v. FCC, DC Circuit, 2016, Senior Judge Stephen Williams, concurring in part and dissenting in part, noted that:

the Order here suggests a different selection of beneficiaries: dominant edge providers such as Netflix and Google. See Order ¶ 197 n. 492

The Order quotes the following comment from the Free State Foundation, essentially acknowledging that it makes Google and Facebook government backed monopolies:

“[T]he reality is that in order for the ‘next Google’ or the ‘next Facebook’ to compete against those well-entrenched giants, the putative new entrant might well be looking to negotiate some arrangement with a service provider that will give it a fighting chance of competing with the entrenched giants by differentiating itself.” (p. 66)

Big Tech does not only collect this government-imposed tax of more than $100 Billion per year (yes, more than $100,000,000,000.00). It has also been allowed to increase it. As YouTube increases its traffic, the ISPs must upgrade their networks to accommodate it. They then pass those costs on to all users by increasing their fees. It is hard to believe that Obama Administration and its Big Tech friends got away with. It also explains why Big Tech and their leftist allies fought tooth and nail against the Restoring Internet Freedom order—going as far as threatening the family of Ajit Pai, FCC Chairman. They failed to stop the passage of RIF but succeeded in halting its implementation by a combination of federal lawsuits, state legislation, and threats. (I have submitted a brief in support of RIF in the DC Circuit Court). The government delegated to Google the privilege to tax the citizens and to keep the proceeds. How can Google not be a state actor?

One of the reasons it is difficult to recognize Google as a state actor is due to its actions against the United States. For example, when President Trump ordered suspension of travel from China, Google intervened in its search results to elevate the World Health Organization, which advised against travel restrictions. At the same time, Google downranked the CDC website which was providing comprehensive guidance for citizens, public health officials, and physicians with live updates.

Since 2016, Google executives have been acting in the US under the direction and control of foreign governments in many of their censorship and content promotion decisions. I don’t know whether it qualifies Google as a state actor, or its executives for indictment under 18 U.S.C. § 951. Agents of foreign governments, or both. Demonetization of PragerU might be one of such illegal acts, flowing from Google’s obligations toward the European Commission or one of EU governments.

Since 2015, Google has been making false representations about its services, so it can be accused of fraud. Just take the case of coronavirus. Google likely selected the top results for the coronavirus searches manually. Google has promised to aim to provide its search users with the most useful information (also helpful or relevant, and authoritative). If it intended to honor its promise, the top links would include CDC.gov. Instead, Google selected Snopes, the New York Times, WHO, and tweets from WHO Director-General -- pieces that are dangerous (Snopes), harmful, useless, and irrelevant. Still, most untruthful statements about its services are issued by Google through the media, not on its website. I wonder whether the False Claims Act lawsuits can be brought against it?

Fraud is probably the least serious among the crimes that Google has committed by reckless and malicious selection of the top results about the coronavirus. Google search is a technical service, like car diagnostics, not the First Amendment speech. This is how Google marketed the service. This is how it gained 90% of the search market. This is how the public understands it.

Photo credit: mjmonty

Leo Goldstein resides in the Eastern District Texas, was injured by Google, Facebook, and Twitter in Texas, and is looking for attorneys willing and able to represent him against them.