Almost two years ago, Google admitted criminal liability for aiding and abetting criminal drug sales, by knowingly selling Google AdWords advertising to criminal enterprises for seven years, in a DOJ-Google Criminal Non-Prosecution Agreement (NPA). See the NPA -- here.
- In return for accepting responsibility for Google’s criminal complicity and disgorging $500m in ill-gotten gains from the Canadian illegal activity, the DOJ agreed to not prosecute Google for its criminal offenses, if, for a period of two years, Google “has a comprehensive compliance and ethics program, and policies, procedures, and technological tools designed to detect and prevent violations of these laws, and to ensure compliance with internal policies and procedures.”
- Importantly, the NPA states: “…it is in the sole discretion of the government to determine whether there has been a deliberate violation of this agreement…” and “the exercise of that discretion by the government under the agreement is not reviewable by any court.”
Last month, Mississippi Attorney General Jim Hood presented evidence and charged that “Google is aiding and abetting criminal activity and putting consumers at risk” at the annual meeting of the National Association of Attorneys General. AG Hood’s press release said he “believes Google breached this agreement” (NPA) and that: “he would provide the Department of Justice with evidence of drug purchases his investigators made… after the DOJ entered an agreement to not prosecute Google for the same conduct.”
In any discussion of prosecutorial discretion, context is important.
First, it is important to consider the potential impact on public-safety.
- As America’s top online market, Google is used monthly by ~200 million Americans, and most U.S. online advertisers and web publishers. Google also is the dominant mechanism through which Americans find content online, and advertisers/websites reach and sell to American consumers online. Consequently, preventing crime by Google is important to ensuring the public safety.
Second, it is important to consider the criminal offender’s compliance with the law and agreement during the probation period.
- During the criminal probation period Google has been found to have violated five different federal laws by four different federal agencies.
- After the DOJ warned Google to not anti-competitively abuse Standard Essential Patents, the FTC found that Google had ignored the DOJ warning and abused SEPs.
- Google violated the FTC-Google-Buzz non-prosecution agreement in 2012 and paid record $22.5m fine for deceptively overriding Apple Safari browser consumer privacy protections to promote Google advertising.
- Under threat of FTC prosecution Google committed to stop misappropriating competitor-owned content in 2012.
- In 2011, the U.S. Treasury Department had to shut down 85 Google-advertised online mortgage scams that were making fraudulent claims to desperate homeowners hoping to avoid foreclosures.
- And the FCC fined Google $25k in 2012 “for willfully and repeatedly violating an FCC enforcement directive” and for “impeding and delaying” an FCC enforcement investigation.
- Google’s representations to DOJ of having a comprehensive compliance program to detect and prevent violations of laws appear highly suspect given Google’s record during the probation period, and given Google’s well-established record of illegal and unsafe behavior over the last decade. See Google’s Consolidated Rap Sheet – here.
Third, it is important to consider how the prosecutorial discretion reflects on the mission of the Justice Department which is: "To enforce the law…; to ensure public safety; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”
Questions for DOJ prosecutors:
"To enforce the law…;”
- When the FBI sting and primary DOJ evidence of crimes were based on a site from Mexico, why was the NPA Canada-focused?
- Why did the DOJ stop investigating, and not investigate other areas of Google advertising illegal activities, given the brazen complicity the FBI sting uncovered?
- Why was the DOJ fine limited to ill-gotten drug sales from Canada, when the violations come from other countries too?
- Has the DOJ’s monitoring of Google’s NPA compliance found any evidence of Google turning a blind eye to advertising illegal activity like the evidence found by State Attorneys General?
- What amount of ongoing Google advertising of criminal activity to the public is acceptable under the NPA?
- Should DOJ prosecute Google Inc. for criminal complicity in violating the letter and the spirit of the NPA?
“To ensure public safety;"
- Has Google violated its remediation compliance commitments in the DOJ-Google criminal NPA?
- How specifically does the NPA ensure that the public safety is being protected now and in the future?
- Should the DOJ’s prosecutorial discretion err on the side of protecting the public safety in the future or protecting Google from future prosecution?
- Given State AG evidence that the public is not being protected under the NPA, will the DOJ use its prosecutorial discretion to try and better ensure the public safety?
“To provide federal leadership in preventing and controlling crime;”
- As the Government’s chief law enforcement agency, does it matter to the DOJ that Google had five different official violations of Federal law with four different federal agencies during the NPA probation period?
- Is DOJ deferring to the more Google-friendly law enforcement jurisdiction of the FTC?
- Does DOJ generally expect companies on probation to have a good record to end the probation?
- On what basis does the DOJ judge Google’s compliance with the NPA? Does it factor in outside input/evidence?
- Will the DOJ rely only on Google’s representations of NPA compliance or will it independently verify compliance?
- What lessons has the DOJ learned from Google breaking the FTC’s Google-Buzz NPA last year and from Google ignoring the DOJ’s official SEP warning?
- Will the DOJ cooperate with state investigations of Google’s advertising of criminal activity that harms consumers of their states?
“To seek just punishment for those guilty of unlawful behavior;” and “To ensure fair and impartial administration of justice for all Americans.”
- Did Google get a sweetheart NPA deal, or could any Fortune 500 company get a similar pay-to-make-it-go-away criminal NPA deal?
- If another Fortune 500 CEO was found by a U.S. Attorney to have clear knowledge of criminal behavior over seven years that recklessly put Americans safety at serious risk, would they also face no individual consequence for their behavior like occurred in this case?
- Can non-white collar criminal defendants caught dead to rights in an FBI sting generally pay a large fine to not get prosecuted by DOJ?
- Does Google’s continued reckless behavior during the NPA imply that it did not take NPA compliance remediation process seriously, or that it believes it can count on political intervention into the justice process?
The clock is ticking until August 19th.
- Will the DOJ independently determine if Google has in fact operated a comprehensive compliance program to detect and prevent Google violations of the law in the future as it promised in the NPA?
- Will DOJ prosecutors resist Google political pressure to brush this under the rug in mid-August when most of the nation is on vacation?
- Will DOJ enforce the law, ensure the public safety and prevent future crimes in a fair and impartial way as DOJ’s mission states?
Google Criminal Complicity Series
Part 1: Why DOJ’s pending criminal case against Google is very serious
Part 2: Google’s Pirate Side; Daily Caller Op-ed on DOJ’s criminal probe of Google
Part 3: Implications of DOJ decision to not criminally prosecute Google
Part 4: Is this the record of a trustworthy company? Check out Google’s Consolidated Rap Sheet