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Googlegate -- The FTC Cover-up Evidence Piles Up
Submitted by Scott Cleland on Wed, 2015-04-01 10:55
The FTC’s Googlegate cover-up problem is that while the FTC may be telling the truth, they apparently are not telling the whole truth and nothing but the truth.
Don’t miss the brief summary below of the role political influence played in the politically messy closure of the FTC-Google antitrust investigation in 2013.
The evidence of FTC special treatment for Google, coupled with an apparent FTC cover-up of the political influence that may have defanged the FTC’s investigative process, is particularly relevant to: the European Commission’s current antitrust investigation of Google’s abuses of its <90% dominance in Europe; reported U.S. Senate oversight interest in the FTC’s closure of the Google investigation; and Mississippi AG Jim Hood’s State-led antitrust and consumer protection investigation of Google.
The FTC has invited closer scrutiny of its messy closure of the FTC-Google antitrust January 3, 2013, because of its blanket assertion in a recent official FTC statement that “not a single fact is offered to substantiate this misleading narrative,” [that political influence soiled] “the integrity of the FTC’s investigation.”
Accepting the FTC’s invitation, this analysis will chronicle extensive evidence -- with literally dozens of facts in this six thousand word analysis and compendium of public evidence -- that political influence soiled at least the appearance of FTC independence and the supposed integrity of the FTC’s Google investigation.
Perception is reality in Washington. That’s why federal ethics rules state: “the standards of ethical conduct for employees of the Executive Branch… are designed to address not only actual conflicts of interest, but also activities that give rise to the appearance of such conflicts.” Simply people know where there’s smoke there’s likely fire.
A. Summary of the Politically Messy Closure of FTC-Google Antitrust Investigation
B. The evidence of political influence over the FTC-Google antitrust case closure
Four questionable Google-related law enforcement hires during the FTC Google investigation.
Federal government hiring rules require a vetting and disclosure process to avoid potential conflicts of interest, which should be especially stringent for the hiring for sensitive senior law enforcement positions.
Personnel and those handling political Schedule C positions are trained in the Office of Government Ethics requirements and thus know that thestandards of ethical conduct for employees of the Executive Branch… are designed to address not only actual conflicts of interest, but also activities that give rise to the appearance of such conflicts.”
Four questionable Google-related law enforcement hires in the span of the final seven months of the FTC’s major Google antitrust investigation from April to November 2012 suggest either a total breakdown of the Federal personnel vetting process, or more likely, a deliberate bypass of Federal personnel rules by the Office of White House Presidential Personnel – to favor Google.
One questionable Google-related hire legitimately could be dismissed as a coincidence, but four in seven months?
The first questionable Google-related law enforcement hire in this particular context was the FTC’s April 26, 2012 hiring of Beth Wilkinson, a partner of Paul, Weiss & Rifkind, as an outside counsel to lead its search bias antitrust investigation of Google. In the Clinton Administration, Ms. Wilkinson served as a Special Counsel to the then U.S. Deputy Attorney General Jamie Gorelick. At the time of the Ms. Wilkinson’s hiring, Wilkinson’s mentor, Jamie Gorelick was Google’s top outside counsel and fixer on high-profile Washington legal matters, including being the lead on the DOJ-Google Non-Prosecution Agreement. [For more details on how professionally close Ms. Gorelick and Ms. Wilkinson are see this post: #howgooglegateworks: Will @senmikelee Investigate Washington Insider Beth Wilkinson? -- on Chris Castle's MusicTechPolicy.com blog.]
The second questionable hire in this particular context was the DOJ Antitrust Division’s May 4, 2012 hire of Renata Hesse, as Deputy Assistant Attorney General because while she was a partner at Wilson Sonsini she worked as an outside counsel defending Google from the DOJ’s opposition to the proposed Google-Yahoo Ad Agreement.
This is relevant to the FTC Google settlement, because Ms. Hesse became Acting Assistant Attorney General for Antitrust during most all of the FTC-Google settlement negotiation period, from November 19, 2012 to December 31, 2012, until the President’s nominee was confirmed by the Senate.
While the U.S. Government is involved in the biggest antitrust investigation in a decade, it is particularly odd that the newest of the four DOJ antitrust deputies to choose from to elevate to the Acting Assistant Attorney General for Antitrust position, would just happen to be the only one with a Google conflict of interest.
The third questionable hire in this particular context was the President’s September 10, 2012 nomination of Joshua Wright as a Republican Commissioner to the FTC when White House Presidential Personnel had to know Mr. Wright had an obvious financial conflict of interest in that Google had funded some of Mr. Wright academic research related to Google’s business. To get confirmed by the Senate, Mr. Wright had to recuse himself from all Google matters for two years. Mr. Wright was confirmed by the Senate one day before the FTC-Google settlement was announced.
Any normal vetting process concerned about maintaining integrity by avoiding the appearance of conflicts, would not have allowed an appointment of an FTC commissioner with Google conflicts of interest knowing that overseeing Google would be significant part of any new FTC Commissioner’s duties -- unless that was exactly what those running the process wanted to accomplish.
The fourth questionable hire in this particular context was the November 16, 2012 hire of Michelle Lee, who was Google’s Deputy General Counsel for Patents and Patent Strategy from 2003 through June of 2012, as a senior U.S. Patent and Trademark Office (USPTO) executive at the exact time Google was under antitrust investigation by the FTC for its anti-competitive strategy of denying competitors access to Google’s Standard Essential Patents at fair and reasonable terms as required by contract.
If one wanted to avoid the obvious appearance of conflicts of interest during a major law enforcement action, one would never hire the strategist responsible for developing and implementing the exact patent strategy that the U.S. Government just found to be illegal. The fact that they did not yet again, only adds to the cumulative appearance that Google gets special treatment from the government on important law enforcement matters of substantial commercial interest to Google Inc.
There are two other subsequent similar questionable hires that do not involve the FTC-Google antitrust settlement, but do provide powerful additional evidence of the problematic “fox guarding the chicken coop” pattern of this Administration, i.e. putting former key Google employees or consultants in positions of key commercial importance to Google, which creates the appearance that the laws, rules and expectations that apply to everyone else do not apply to Google.
The fifth questionable hire in this broader context was the August 23, 2013 hire of David Gelfand, who “represented Google in 2010 in the Federal Trade Commission’s antitrust review of Google’s $750 million purchase of the mobile advertising platform AdMob,” that the FTC staff opposed, for Deputy Assistant Attorney General for Litigation of the DOJ Antitrust Division.
The potential conflicts here are actual, obvious, and staggering. Mr. Gelfand’s position oversees two operative Google antitrust consent decrees with Google over which there was no apparent public announcement that he was recused from involvement: Google-ITA and Google employee pay collusion.
Mr. Gelfand’s position would also be involved in liaison with the European Commission Directorate of Competition in their ongoing decision whether or not to prosecute Google for search bias violations of EU competition law. There also was no apparent public disclosure that Mr. Gelfand recused himself from any liaison with foreign competition authorities investigating Google for search bias or Android abuses.
The sixth questionable hire in this broader context was the hire May 7, 2013 of Nicole Wong, who served as Google Deputy General Counsel for privacy and copyright issues from 2005-2012, for Deputy U.S. Chief Technology Officer for Privacy. This is another obvious conflict of interest because Ms. Wong was responsible for Google privacy compliance when Google had to settle with the FTC for systemic privacy misrepresentations in the FTC-Google-Buzz consent decree and also when the FTC fined Google a record $22.5m for violating that FTC consent decree just months later.
If one were interested in appearing to be an impartial and a fair administrator of the Nation’s justice and federal policy making process, one would not repeatedly hire individuals from a company under multiple serious investigations/oversight by the U.S. Government -- for senior positions of greatest commercial interest to that conflicted company.
One or two of these hires could be viewed as a coincidence or an understandable special circumstance, but six? Six is an obvious pattern of at least the appearance of having the proverbial “fox guard the chicken coop.”
The FTC’s Democrat majority folded on enforcing their “most troubling” search concern.
A majority of the FTC, the three Democrat commissioners: Leibowitz, Brill and Ramirez, in the FTC opening remarks and closing statement said that Google’s scraping of competitors content and using it as its own was “the most troubling of [Google’s] business practices related to Internet search and search advertising;” and that they “found the record evidence to support strong concerns about Google’s conduct in this regard.”
However, the majority inexplicably did not require a Section 5 enforceable commitment from Google despite having a majority to do so.
In addition, we learn from comparing the leaked FTC Staff Report to the FTCstatements at the time it closed the case, that the FTC majority apparently silently, politically, and effectivley swept another major staff antitrust charge under the rug for Google.
The FTC Staff Report on page 102 states that: “We conclude that these agreements [“Google’s Exclusive and Restrictive Syndication Agreements”] violate Section II” of the Sherman Antitrust Act. Ironically, the FTC Staff Report concluded the same thing that the Bush DOJ Antitrust Division did when it blocked the Google Yahoo Ad Syndication Agreement in 2008 via a threatened Sherman Section I and II case.
FTC Commissioners/overseers spotlighted political problems at the time of the closure.
Two weeks before the FTC-Google settlement, the then previous FTC Chairman William Kovacich criticized the then Google rumored settlement in a Bloomberg story: “The notion of voluntary commitments is close to worthless…They are feeble policy-making instruments and they will not in any way placate the complainants, who will correctly see them for what they are, which is an attempt to provide cover to walk away.”
The day of the FTC-Google settlement, then Senate Judiciary Committee Chairman Patrick Leahy said: “I am disappointed… [the FTC-Google settlement] relied on simple, voluntary commitments from Google to end certain practices that a majority of Commissioners found to have raised strong concerns about impeding innovation.”
FTC created a special and highly-unusual one-time political fix mechanism for Google.
Two weeks after the 2012 Presidential election, Bloomberg reported that“FTC Chairman Jon Leibowitz told Google to propose a resolution to a host of antitrust concerns in the coming days or face a lawsuit, two people familiar with the matter said last week.”
The reason the FTC-Google settlement was politically criticized in January of 2013 for being special treatment and unprecedented, is that it apparently was based on a largely-benign Google-drafted proposed settlement that Google easily could live with, not an FTC-drafted settlement that an FTC majority would write and require to avoid litigation -- absent external political influence.
(Unsurprisingly, this apparently is identical to the EC process adopted by the EC’s top antitrust enforcer Joaquin Almunia, who gave Google three opportunities to draft their own settlement proposal, and all were ultimately rejected as ineffectual and reinforcing of Google’s dominance.)
The day of the settlement in January 2013, Republican FTC Commissioner Tom Rosch, who voted to close the search investigation, still implied there was political influence over the FTC’s settlement in bluntly stating to Bloomberg that the FTC agreement “creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the commission. Instead of following standard commission procedure and entering into a binding consent agreement to resolve the majority’s concerns, Google has instead made non-binding commitments with respect to its search practices.”
In a footnote in the FTC’s closing statement, Commissioner Edith Ramirez stated she “objects to the form of the commitments made by Google.” As the ostensible third vote the FTC Democrat majority needed to impose the voluntary agreements, the open question is, was there political pressure from the White House for Commissioner Ramirez to go along with an arrangement with which she did not personally agree?
Three months later at a Senate Antitrust Subcommittee hearing, then FTC Chairwoman Ramirez went out of her way to personally distance herself even more from the political nature of the Google settlement. Chairwoman Ramirez stated: “That matter [the voluntary Google search settlement] should not be considered precedent. When there is a majority of commissioners who find there is a violation, any remedy should be in a formal commitment order. That’s what happened before the Google matter and that’s what’s going to happen after the Google matter.”
These facts above clearly imply that at least one FTC commissioner believed they politically had to do something special and unprecedented this one time for the Google case on January 3, 2013, to which they otherwise would not agree. Why does someone do something they prefer not to do on their own? Usually it is outside pressure to go along with a pre-arranged outcome.
Simply, this adds to the cumulative body of evidence of an appearance of political pressure on the FTC to close the Google antitrust case in a manner more acceptable to Google than to the FTC.
The FTC was very politically connected at the time.
FTC Chairwoman Edith Ramirez, who was an FTC Commissioner at the time of the FTC-Google settlement, has very close personal and political ties to the President. Chairwoman Ramirez and the President worked together on the Harvard Law Review in the early 1990s and in the 2008 Obama-Biden Presidential campaign, Chairwoman Ramirez served as the campaign’s Director of Latino outreach, per Politico.
Remarkably, this January President Obama was the first U.S. President in eighty years to visit and address the FTC staff (per his remarks), where he announced his new Consumer Privacy Bill of Rights.
It might have been the first time in eighty years because other Presidents have understood and respected that the FTC is an agency that is supposed to be independent of the Executive Branch.
The 2012 re-election looks like an inflection point that flipped the case from prosecution to settlement.
Three weeks before the 2012 Presidential election, the FTC was signaling it was poised to prosecute Google for anti-competitive abuses of its search dominance. Per the Washington Post with Bloomberg: “FTC investigators pushing Google antitrust suit, memo says” “Federal Trade Commission investigators are circulating an internal draft memo that recommends suing Google for abusing its dominance of Internet search in violation of antitrust laws, three people familiar with the matter said. The more than 100-page memo has been distributed to the agency’s five commissioners, who will decide whether to sue, two of the people said. A majority of commissioners, including FTC Chairman Jon Leibowitz, have expressed concerns internally about Google’s practices, and are deciding how to proceed, two of the people said.”
Two weeks after the election the FTC Chairman was publicly signaling the opposite before the election. Bloomberg reported: “Google… may skirt the most serious antitrust allegations under investigation by the U.S. as regulators waver on whether they can prove consumers are hurt by the way the company ranks its search results, three people familiar with the matter said.” … “FTC Chairman Jon Leibowitz told Google to propose a resolution to a host of antitrust concerns in the coming days or face a lawsuit, two people familiar with the matter said last week.”
The FTC case closure was apparent political quid pro quo for Eric Schmidt’s key re-election help.
Generally an Administration wants to operate in public in a manner that is above public reproach, especially an Administration like the current one that entered office with a high-profile tough ethics stance in an Executive Order for all employees that raised the ethics bar even higher than before.
Generally a company under a serious investigation in a publicly important law enforcement investigation would want to assume a low public profile and operate in a way that is above public reproach, especially when it involves a Presidential election campaign.
However, the facts in this instance create the appearance of serious conflicts of interests involving the overall integrity and impartiality of the U.S. administration of justice.
Per Bloomberg: “During the 2012 campaign, Barack Obama’s reelection team had an underappreciated asset: Google’s (GOOG) executive chairman, Eric Schmidt. He helped recruit talent, choose technology, and coach the campaign manager, Jim Messina, on the finer points of leading a large organization. [See here for more] “On election night he was in our boiler room in Chicago,” says David Plouffe, then a senior White House adviser. Schmidt had a particular affinity for a group of engineers and statisticians tucked away beneath a disco ball in a darkened corner of the office known as “the Cave.” The data analytics team, led by 30-year-old Dan Wagner, is credited with producing Obama’s surprising 5 million-vote margin of victory.”
Dan Wagner explained to Built in Chicago how Civis Analytics came to be: “In the exhausted post-campaign haze, my initial thought was to take some money that I’d saved and apply for a small business loan from a bank. Thankfully, Eric Schmidt approached me on Election Night and suggested we talk the following day. It was in that second conversation that he asked me what I was planning to do next. When I explained my plan, he looked at me and said, “Yeah, that’s not going to work. I have another idea.” He told me to write up my idea in a couple of pages and that we’d start the conversation more seriously from there.”
Time Magazine explained the importance of data analytics to the 2012 Presidential election outcome: “Inside the Secret World of the Data Crunchers Who Helped Obama Win … Data-driven decision-making played a huge role in creating a second term for the 44th President and will be one of the more closely studied elements of the 2012 cycle.”
The apparent extraordinary political value of Google’s Chairman Schmidt expertise and efforts to the President’s reelection effort combined with the extraordinary law enforcement risk Google faced if the FTC sued Google in court for antitrust violations as the FTC indicated was likely before the election, creates the appearance of an especially grand quid pro quo – the opposite of ensuring there is no appearance of conflicts of interest under Federal ethics rules.
Schmidt’s reelection help apparently rewarded with multiple White House Google hires.
Washington knows access is power.
The WSJ reports that White House log data indicate Google officials had meetings with White House officials over 200 times in the last six years – about once a week.
Washington also knows people are policy.
In addition, to the former Google employees and consultants conveniently positioned in high places covering most enforcement areas of commercial interest to Google discussed previously in this compendium, former Google employees also dominate the current White House Office of the Chief Technology Officer – an office that oversees most every federal policy issue of commercial interest to Google Inc.
This creates at least the appearance that U.S. tech, privacy, and intellectual property policy is currently – “powered by Google” – not the public interest.
Google got more than an antitrust pass, it’s getting a pass on 8 more FTC actionable problems.
[Note this section is an excerpt of a previous PrecursorBlog published 3-20-15.]
The FTC has shown no public interest in investigating Google since the FTC formally dropped its Google search and search advertising investigation eight weeks after the Presidential Election.
The disclosure of the FTC staff report findings of facts, that Google now has a monopoly share of 69-84% and that it is manipulating search results to favor Google’s shopping and travel services over competitors’ services, puts a spotlight on the FTC that it may be protecting Google more than it is protecting consumers.
First, the FTC is not keeping its Google merger review promises to protect consumers.
Consider what the FTC promised after it closed its antitrust reviews of Google’s acquisitions of DoubleClick and AdMob.
FTC on closing its DoubleClick investigation: “We want to be clear, however, that we will closely watch these markets and, should Google engage in unlawful tying or other anticompetitive conduct, the Commission intends to act quickly.”
FTC on closing its Admob investigation: “In a statement issued today, the Commission said that although the combination of the two leading mobile advertising networks raised serious antitrust issues, the agency’s concerns ultimately were overshadowed by recent developments in the market, most notably a move by Apple Computer Inc. – the maker of the iPhone – to launch its own, competing mobile ad network.” … “Though we have determined not to take action today, the Commission will continue to monitor the mobile marketplace to ensure a competitive environment and to protect the interests of consumers.” [Subsequently, Apple’s iAd competition did not materialize as the FTC imagined; Apple now reportedly has a meager 3% share of this relevant market.]
Apparently, the FTC did not want to admit that its approvals of Google’s acquisitions of both DoubleClick and AdMob may have resulted in violations of the Clayton Act. That’s because it appears Google has illegally acquired market power, and then used it to act anti-competitively in multiple ways.
Second, the FTC is not protecting consumers from Google deceptive practices.
The most damning evidence in the previously-undisclosed staff report is that the FTC is not protecting consumers from obvious deceptive advertising by Google.
Obviously, no one at the FTC has bothered to read Google’s blanket public representations that it never manipulates its search results, despite the FTC staff report concluding that Google in fact does manipulate search results to benefit itself financially.
Consider this incredibly public and self-incriminating evidence to which the FTC has apparently turned a blind eye.
From the top of Google’s current “About” page -- “Ten things we know to be true. We first wrote these “10 things” when Google was just a few years old. From time to time we revisit this list to see if it still holds true. We hope it does—and you can hold us to that.” … “You can make money without doing evil.” …“Advertising on Google is always clearly identified as a “Sponsored Link,” so it does not compromise the integrity of our search results. We never manipulate rankings to put our partners higher in our search results and no one can buy better PageRank. Our users trust our objectivity and no short-term gain could ever justify breaching that trust.”
From Google’s 2004 Founders’ IPO Letter -- “Don't be evil. …Google users trust our systems to help them with important decisions: medical, financial and many others. Our search results are the best we know how to produce. They are unbiased and objective, and we do not accept payment for them or for inclusion or more frequent updating.”
Consider the evidence below that the FTC has ignored when it comes to whether Google is fairly representing its business to consumers.
In October of 2012, the FTC staff report concluded that Google in fact was manipulating its search results in many ways.
Then after the FTC closed its investigation into search bias, the search industry’s widely-recognized leading expert, Danny Sullivan of Search Engine Land, twice documented how Google was obviously manipulating its search results and breaking its public promises.
See: Search Engine Land, 4-30-12: Google “Comparison” Units Get New Look; Change Highlights Paid Inclusion In Some Vertical Search Areas; and Marketing land, 11-17-13: Google’s Broken Promises & Who’s Running The Search Engine?
The extensive evidence above strongly indicates that since the 2012 Presidential election the FTC does not appear very interested in investigating Google or enforcing FTC consumer protection law as it pertains to Google.
[Note the following is another excerpt from a previous PrecursorBlog published 7-17-2014.]
The evidence the FTC is AWOL on Google
Specifically, there are no less than five new likely violations of the FTC’s Google-Buzz privacy consent decree, and one new antitrust problem that the FTC apparently is not investigating.
Sadly, the accumulating evidence documented below, on top of substantial previously documented evidence that the FTC has long been AWOL on Google privacy, is reinforcing the growing perception that, when it comes to Google and the law, the FTC prefers to look the other way.
In response to a recent Politico question whether the FTC would pursue Google for allowing “unauthorized in-app purchases” by minors, after the FTC had settled with Apple and formally sued Amazon on the same matter, the FTC Director of Consumer Protection only said: the “principle we’re announcing today, that you need to obtain consumers’ informed consent… applies to everybody” per Politico reporting.
If the “need to obtain consumers’ informed consent” is indeed true, why a year after Google’s forced integration of most all its separate privacy policies into one omnibus policy, have we heard nothing from the FTC on this?
The FTC’s Google-Buzz enforcement decree, that supposedly established a comprehensive privacy framework for Google to abide by, appears to require “informed consent” and opt-out for such privacy changes.
Moreover, Google has already violated the FTC’s Google-Buzz consent decree and been fined for hacking Safari to override users’ privacy settings.
Google Apps for Education Privacy Misrepresentations
The FTC has long focused their privacy and consumer-protection enforcement on protecting minors.
In March, Education Week reported that Google was exposed in a civil suit deposition to have secretly read all student-Gmail before it was received without any notice or “informed consent,” for the commercial purpose of creating a targeted advertising profile on the student for the future.
In an April mea culpa blog post Google effectively had to admit that for three years until April 29th 2014, Google secretly had been illegally collecting private student data for advertising purposes in violation of their public privacy representations and FERPA.
The analysis here explains why this three-years-late, privacy invasion disclosure affecting minors is especially serious, inadequate and misleading.
Google+ won’t allow users to control who is in their Circles
In December 2013, Consumer Watchdog sent the FTC a study that found: “Google’s Social Network is Playground for Online Predators, Explicit Sexual Content, Tech Whistleblower Finds; Consumer Watchdog Says Google Must Police Google+.”
Google+ is Google’s social media application with about a half a billion users, many of whom are minors. The Consumer Watchdog study found that Google had long ignored complaints by users and parents that Google+ was a haven for pedophile communities and sexual predators.
In January Consumer Watchdog reported: “Google+ Shuts Online Predators’ Accounts In Response to Consumer Watchdog Letter, But Key Privacy Design Flaw Remains and Must Be Fixed.”
Only when confronted publicly with the illegal predatory activity against minors on Google+, did Google finally ban particular predators, but disturbingly Google+ just changed its Google+ policy yesterday to allow people to not use their real names anymore, which will obviously make it much easier for those same recently excluded pedophiles and sexual predators to secretly resume their predation on Google+.
What is most disturbing and astonishing here is that Google still allows anyone to join anyone else’s Google+ Circle without a person’s permission. Google allows no opt-out to protect one’s privacy or security in Google’s circles.
Thus this allows any known, or now unknown fake-named, pedophile, sex offender or predator to join any child’s Circle and the child or parent cannot remove that person from their Circle, despite longstanding repeated complaints to Google from parents concerned for their children’s safety.
If the FTC truly cares about the privacy and safety of minors like they claim to care in their enforcement actions against other companies not called Google, why would the FTC not investigate Google?
Where is the FTC on this? After six months, their silence is deafening and increasingly suggests that they are not investigating or concerned about this privacy and safety problem affecting potentially millions of vulnerable minors in the U.S. and abroad.
Google’s secret “Content One Box” Gmail widespread wiretapping
In March, a Federal class action case on Gmail wiretapping made public new actionable information from discovery depositions, that Google was secretly intercepting and reading for commercial purposes most all Americans emails through Gmail, via a secret device called “Content One Box” without any notice or “informed consent” of users.
Wouldn’t Google’s secret interception of all private emails through Gmail since 2010, without users notice or “informed consent,” that affected literally most all Americans emailing online from 2010-2014, have the potential to be considered an FTC deceptive trade practice under Section 5 given that a Federal Court already has ruled it is illegal widespread wiretapping?
Google’s secret Street View illegal widespread wiretapping
In late June, the Supreme Court refused to hear Google’s appeal of a Ninth Circuit Court ruling that wiretap law prohibits the type of transmission “interception” that Google StreetView cars’ did in secretly collecting personal information, emails and passwords from unencrypted home WiFi networks.
Specifically, this court denied Google’s claim that not encrypting one’s WiFi was a user’s fault and thus by default made their WiFi transmissions public. And this court also denied Google’s claim it was due the law’s exception designed to protect radio stations.
This practically means Google was engaged in illegal widespread wiretapping of tens of millions of Americans private homes.
It is important to refresh the record here. FTC staff quickly closed their Google Street View investigation after a few months via a little-noticed letter to Google that was based on a Google blog that made assurances that it was “creating greater privacy controls inside Google.”
Since the FTC prematurely closed their Google Street View WiSpy investigation in October of 2011, based on Google’s privacy representations to the public and the FTC, three major new material facts have occurred that warrant a reopening of the FTC’s investigation, because Google clearly violated the representations by which the FTC staff agreed to close its investigation.
First, in April of 2012, the FCC imposed a maximum $25k fine on Google because it "deliberately impeded and delayed the Bureau's investigation" The FTC also indicated in its enforcement Notice that Google's lack of full cooperation made it impossible to determine if Google violated the law prohibiting wiretapping or not.
Second, the Supreme Court’s decision largely clears up any confusion about the legality of Google Street View’s secret WiSpy collections – they were illegal wiretapping according to the U.S. Federal Court system.
Third, the privacy assurances, public representations, and new privacy internal controls that Google made to shut down the Street View Wispy investigation should have caught and stopped the illegal Gmail wiretapping of the Gmail Content One Box discussed above or the Google-Buzz violation that led to the FTC’s Google-Buzz consent decree.
This incident represents a serious and sweeping violation of one of the most serious privacy offenses in U.S. privacy law for tens of millions of Americans.
Wouldn’t Google’s secret interception of potentially tens of millions of Americans private emails and passwords without notice or “informed consent” at least be investigated as an FTC deceptive trade practice under Section 5, given that the courts have already de facto determined this particular Google Street View practice illegal?
Google-Android Mobile Advertising Dominance
We just learned that for the second year in a row, Google dominates mobile advertising worldwide with 50.2% market share, per eMarketer.
In 2010, the FTC approved Google’s acquisition of AdMob, then the world’s leading mobile advertising platform, despite “serious antitrust issues,” because the FTC concluded that nascent competition from Apple would prevent Google from extending its desktop online advertising market power into mobile. It even promised that it would “continue to monitor the mobile marketplace to ensure a competitive environment.”
Well fast forward, and today Apple is competitively nowhere in this market with at most about 1% part of the worldwide mobile advertising market, if that, per eMarketer, while Google controls over half of the market.
Under the Clayton Act it is illegal to acquire market power. If new facts emerge that are different from the FTC’s original conclusions in approving the acquisition, the FTC has a legal obligation to reopen its investigation.
After two years of 50% share of worldwide mobile advertising, and even higher shares in the U.S. per eMarketer, one would think the FTC would want to investigate to determine if it made a mistake with AdMob, especially given that now there is now a Android class action suit pending and the EU has signaled it is beginning to investigate Google’s mobile business for anti-competitive behavior.
In sum, any one of these issues warrants FTC investigation on its own merits. The fact that six enforcement issues affecting Google are apparently not being investigated is a hard-to-dismiss pattern and perception of FTC non-enforcement for Google. It strongly suggests that the FTC for some reason may be looking the other way when it comes to Google.
Maybe the FTC is quietly and seriously investigating all these important matters behind-the-scenes and eventually we will hear if they are going to prosecute, settle, or do nothing, concerning these important privacy and competition matters squarely in the FTC’s jurisdiction and enforcement focus area.
We understand the wheels of justice can turn slowly, but we hope they will turn justly.
Until we hear something from the FTC on these matters it appears that the FTC is largely AWOL on Google.
In short, the FTC can no longer claim that there is not a single fact that suggests there was inappropriate political influence on the FTC’s politically messy closure of the Google antitrust investigation.
This analysis and compendium presents literally dozens of public facts that reinforce at least an appearance of systemic ethical lapses in the integrity of the administration of justice concerning the FTC-Google antitrust settlement.
Common sense tells us, where there is this much smoke, there’s fire.
Further investigation, maybe aided by subpoenas and testimonies under oath, may be required to get to the bottom of this apparently partial administration of justice for Google Inc.
Google Unaccountability Series
Part 0: Google's Poor & Defiant Settlement Record [5-1-12]
Part 1: Why Google Thinks It Is Above the Law [4-17-12]
Part 2: Top Ten Untrue Google Stories [5-8-12]
Part 3: Google's Growing Record of Obstruction of Justice [6-21-12]
Part 4: Why FTC's $22.5m Privacy Fine is Faux Accountability [7-12-12]
Part 5: Google's Culture of Unaccountability: In Their Own Words [8-1-12]
Part 6: Google Mocks the FTC's Ineffectual Privacy & Antitrust Enforcement [8-10-12]
Part 7: An FTC Googleopoly Get Out of Jail Free Card? [8-30-12]
Part 8: Top Lessons to Learn for Google Antitrust Enforcers [9-14-12]
Part 9: Google Mocks EU and FTC in Courting Yahoo Again [9-26-12]
Part 10: FTC-Google Antitrust: The Obvious Case of Consumer Harm [11-25-12]
Part 11: Why FTC Can't Responsibly End Google Search Bias Antitrust Investigation [11-27-12]
Part 12: Oversight Questions for FTC's Handling of Google Antitrust Probe [11-30-12]
Part 13: Courts Not FTC Should Decide on Google Practices (The Hill Op-ed) [12-10-12]
Part 14: Troubling Irregularities Mount in FTC Handling of Google Investigation [12-17-12]
Part 15: Top Ten Unanswered Questions on FTC-Google Outcome [1-3-13]
Part 16: Top Takeaways from FTC's Google Antitrust Decisions [1-7-13]
Part 17: Google’s Global Antitrust Rap Sheet [1-31-13]
Part 18: Google’s Privacy Words vs. its Anti-privacy Deeds [3-8-13]
Part 19: Google’s Privacy Rap Sheet Updated – Fact-checking Google’s Privacy Claims [3-13-13]
Part 20: DOJ & FTC Report Cards [4-12-13]
Part 21: The Evidence Google Bamboozled EU Competition Authorities [4-19-13]
Part 22: EU-Google: Too Powerful to Prosecute? Problems with Enabling Google [5-1-13]
Part 23: Google’s proposed EU Search Bias Remedies: a Satire [5-17-13]
Part 24: Google’s Antitrust Rap Sheet Updated [5-27-13]
Part 25: Is This the Track Record of a Trustworthy Company? See Google’s Rap Sheet [6-6-13]
Part 26: Top Questions as DOJ-Google Criminal Prosecution Deadline Approaches [7-12-13]
Part 27: The Evidence Google Violated the DOJ Non-Prosecution Agreement [8-8-13]
Part 28: Implications of EU Ruling Google Abused its Search Dominance [9-27-13]
Part 29: Google-YouAd is a Deceptive and Unfair Business Practice [10-24-13]
Part 30: EU's Google Antitrust Problems Not Going Away [12-16-13]
Part 31: How the Google-EC Competition Deal Harms Europe [2-10-14]
Part 32: Open Letter to European Commissioners to Reject EC-Google Settlement [2-16-14]
Part 33: Google’s Extensive Cover-up [2-24-14]
Part 34: Open Letter on Google’s Opposition to Distracted Driving Legislation [2-27-14]
Part 35: The Growing EC-Google Settlement Scandal – An Open Letter to EC Officials [3-31-14]
Part 36: Google’s Glass House [4-14-14]
Part 37: Google’s Titan Spy-Drones Mimic Military Spy Planes [4-17-14]
Part 38: Google’s Anti-Competitive Rap Sheet Warrants Prosecution not Leniency [4-30-14]
Part 39: Google Apps for Education Dangers --Letter to School Administrators/Parents [5-17-14]
Part 40: Google’s AdSense Lawsuit Spotlights Google’s Corruption of Unaccountability [5-23-14]
Part 41: Google’s Title II Utility Regulation Risks – An Open Letter to Investors [6-3-14]
Part 42: Six Ways the FTC is AWOL on Google [7-16-14]
Part 43: Fact-checking Google’s Public EC Competition Defense [9-21-14]
Part 44: Top 10 Reasons Why Google is Causing EU More Problems than Microsoft Did [10-1-14]
Part 45: Google Profiting from Hacked Celebrity Women Photos “How Google Works” [10-6-14]
Part 46: Fact-checking Google Schmidt’s “Ich bin ein Big-fibber” Berlin Speech [10-14-14]
Part 47: Google’s Dominance isn’t Peaking its Proliferating [11-4-14]
Part 48: A European Revolution against Google’s Virtual Colonialization? [11-24-14]
Part 49: Google’s Serial Bad Acts Harm American Interests in Europe [11-28-14]
Part 50: Evading Sovereign Accountability is “How Google Works” [12-10-14]
Part 51: What’s Google Really up to in Wireless [1-30-15]
Part 54: Evading Sovereign Accountability is “How Google Works” [12-10-14]
Part 55: Bullying is “How Google Works” – Ask Law Enforcement [12-21-14]
Part 56: Deceptive Branding is “How Google Works” Ask EC Law Enforcement [1-7-15]
Part 57: Breaking Privacy Promises is How Google Works - New Student Privacy Pledge [1-22-15]
Part 58: What’s Google Really Up To in Wireless? [1-30-15]
Part 59: Google’s Title II Privacy Liability Nightmare [2-6-15]
Part 62: FTC-Googlegate Scandal Repercussions in U.S. & EU [3-20-15]
Part 63: The Appearance of Google-USG Conflicts of Interest Grows [3-25-15]