Six Ways the FTC is AWOL on Google

 

The mounting evidence indicates the FTC is AWOL on Google.

Currently there are no less than six important Google enforcement issues that that the FTC should be investigating, but apparently is not.  

In stark contrast, the EU has many serious problems with Google’s >90% dominance and its persistent disregard for Europe’s privacy, data protection and the right to be forgotten requirements.

An American Google enforcement vacuum stiffens the EU’s resolve and adds to the need and urgency for the EC to step in to preserve the rule of law in Europe.

An absentee FTC, which is largely ignoring consumer choice, also makes it harder for the U.S. to preserve the US-EU safe harbor for the handling of personal information in the pending Transatlantic Trade and Investment Partnership (TTIP). Post-Snowden, the US and EU are far apart on data protection, and a glaringly absentee FTC only exacerbates that divide.

    

 

1. Summary of Evidence the FTC is AWOL on Google

 

Apparently there is no pending FTC investigation of:

 

1. Google’s forced privacy policy integration without user opt-out;

2. Google Apps for Education’s known privacy misrepresentations for minors;

3. Google+ still is not allowing users to control who is in their social “Circles;”

4. Google’s recently exposed Gmail wiretapping via a secret “Content One Box”;

5. Google Street View’s wiretapping recently was ruled illegal by Supreme Court; and

6. Google-Android’s mobile advertising dominance has been established.

 

   B.   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 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.  

 

1. Google’s Forced Privacy Policy Integration

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.

Furthermore, dozens of State AGs objected to Google’s privacy policy change, and several EU countries have fined Google for not allowing informed consent and any user opt-out.

Why isn’t the FTC applying its supposed universal principle of “informed consent” to Google’s controversial and farthest-reaching privacy policy?  

 

1. 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 postGoogle effectively had to admit that for three years until April 29^th 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.

Simply, this appears to be a quintessential misrepresentation of Google’s privacy policy and an unfair and deceptive business practice – exactly the kind of commercial behavior the FTC is supposed to root out and sanction under its longstanding Section 5 authority.    

 

1. Google+ won’t allow users to control who is in their Circles --

In December, 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.

Disturbingly, Google aggressively integrated Google+ with a wide variety of Google’s products and services that students and minors routinely use, while it was aggressively integrating its privacy policy.

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?

Google is clearly misrepresenting to the public and parents that Google+ is safe for minors and is covered by a strong omnibus privacy policy and the availability of substantial user controls, but then maintain a Google+ policy that obviously endangers minors by not letting them opt out from being associated with people that they do not know or find suspicious -- for privacy, safety, or other reasons.

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.   

 

1. 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? 

 

1. 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?  

 

1. 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.  

 

1. Conclusion

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.

Importantly, an FTC that is AWOL on Google will likely yield the exact opposite enforcement stance in Europe, because Google’s routine disregard for rule of law in Europe has raised the ire of European regulators and European competitors can never have a chance to succeed if they have to obey Europe’s laws and Google does not.   

 

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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 [2-25-14]

Part 34: An Open Letter on Google’s Opposition to Distracted Driving Legislation [2-27-14]

Part 35: Google’s Widespread Wiretapping  [3-20-14]

Part 36: The Growing EC-Google Competition Settlement Scandal – an Open Letter [3-31-14]

Part 37: Google’s Glass House [4-14-14]

Part 38: Google’s Titan Spy-Drones Mimic Military Spy Planes [4-17-14]

Part 39: Google’s Anti-Competitive Rap Sheet Warrants Prosecution not Leniency [4-30-14]

Part 40: Google Apps for Education Dangers [5-17-14]

Part 41: Google AdSense Lawsuit Spotlights the Corruption of Unaccountability [5-23-14]