YouTube

With Canada, Spain, the UK, and 38 U.S. states all cracking down on Google's wanton wardriving spyfi scandal, where is the U.S. Federal Trade Commission (FTC), the supposed lead agency on protecting consumers online privacy?

The FTC's silence and apparent absence from the online privacy enforcement playing field is particularly perplexing and alarming... because now it appears that we have a company that is out-of-control in tracking consumers' private actions online, and creating total information awareness power, while we have a supposed lead privacy regulator that appears not to be leading in protecting consumers' privacy...

The evidence is increasingly difficult to ignore that the FTC & DOJ, over the last two Administrations, repeatedly failed to enforce Section 7 of the Clayton Antitrust Act, and have allowed Google's acquisitions of YouTube, DoubleClick, and AdMob to illegally "substantially... lessen competition" and "tend to create a monopoly."

• This analysis will spotlight that Google's display advertising and mobile businesses would not be tending to monopoly, and would not be anti-competitively lessening competition, but for the illegal acquisition of market power via YouTube, DoubleClick, and AdMob.
• This analysis is also a sobering backdrop of the exceptionally high stakes for the competitiveness of the online travel vertical if Google is allowed to acquire even more market power via its proposed acquisition of ITA Software.

I.  Absentee Antitrust Enforcement & Market Failure

Free markets depend on both the rule of law and the equal enforcement of the law to prevent illegal monopolization.

Google announced it is working on an economy-wide Google Price Index, but has not decided whether to make it public, per Google Chief Economist, Hal Varian, who spoke at the National Association of Business Economists conference this week.

• This development has under-appreciated implications for insider trading and also spotlights how Google's online dominance of market-relevant information suggests market failure and a new potential systemic vulnerability to the integrity of global capital markets.

I.  Insider Trading

In March, Google CEO Eric Schmidt said: "One day we had a conversation where we figured out we could just try and predict the stock market... and then we decided it was illegal. So we stopped doing that."

Now any hedge fund (or market regulator not born yesterday) understands that if Google is actively working on a Google Price Index, Google has not stopped trying to use its uniquely comprehensive and timely, repository of sensitive market information to predict information highly useful to predicting the stock market.

Why are the Big Four networks Fox, NBC, ABC, and CBS, not flocking to Google TV, the largest digital video distribution network in the the world -- by far? And why did Forrester's analyst characterize Google TV's programmer sign-ups to date as "underwhelming?"

The core reason is a profound vision and business model clash between existing programmers/distributors and Google Inc. Why?

(Don't miss the eye-opening numbers at the end of this post.)

I am testifying tomorrow before the House Judiciary Competition Subcommittee hearing on "Competition in the Evolving Digital Marketplace."

• My written testimony, with a one-page summary, is here.
• In addition, to talking generally about the evolving digital marketplace, I focus specifically on "The Main Antitrust Event -- Googleopoly."
  • My testimony includes my most recent Google antitrust research released Monday as an attachment: Googleopoly VI Seeing the Big Picture -- How Google Monopolizes Consumer Internet Media.

The other witnesses I have heard that are testifying are: Ed Black of CCIA, Morgan Reed of ACT, Mark Cooper of Consumer Federation, and Geoff Mannes of Lewis and Clarke Law School.

It is a particularly timely hearing given Google's pending acquisition of ITA Software, which is under review at the DOJ, and which is a quintessential example of how Google exploits the soft underbelly of antitrust enforcement to buy its way to monopoly power in vertical markets like travel. My testimony attachment explains how Google already bought its way to a Internet video monopoly via its acquisitions and integration of YouTube, DoubleClick, and AdMob.

The link is here to: "Googleopoly VI -- How Google is Monopolizing Consumer Internet Media and Threatening a Price Deflationary Spiral and Major Job Losses in a Trillion Dollar Sector" -- It is a 41 page PowerPoint presentation with 18 pages of pictorial analysis.

Below is the Executive Summary: (The PDF link is here.)

Executive Summary

Googleopoly VI – Seeing the Big Picture: How Google is Monopolizing Consumer Internet Media

And Threatening a Price Deflationary Spiral & Major Job Losses in a $Trillion Sector

By Scott Cleland* President of Precursor LLC, September 13, 2010

The fateful policy decision by the FTC/DOJ to exclude privacy as a factor in antitrust enforcement has fostered a perverse market dynamic where many online advertising companies now effectively compete on the basis of who can most take advantage of consumer privacy fastest, rather than compete on the basis of who can best protect consumer privacy. 

• Consumers' online privacy Waterloo was the FTC's failure in its 2007 review of Google-DoubleClick to fundamentally understand the online advertising business model, i.e. that consumers are not the "customer" of online advertising, but the "product" that Google and DoubleClick effectively sell to advertisers and publishers.
• In getting it wrong that consumers are the real "customer" in Google's online advertising brokering-triangle of advertisers, publishers and users, when users don't pay Google at all, the FTC fundamentally misunderstood consumers' real interests.
• The FTC unwittingly aimed the worst part of this business model's privacy arbitrage at consumers' vulnerabilities rather than aiming it at protecting consumers' privacy. 

This analysis will show: 

• The implications of exempting privacy from antitrust enforcement;
• Why privacy is an antitrust issue;
• How consumers are harmed by exempting privacy from antitrust enforcement; and
• In conclusion, how Google has become the "poster child" of this problem.  

I.   Implications of exempting privacy from antitrust enforcement.   

In ominous cross-pond agreement for Google, the Financial Times and the New York Times agree that Google needs more antitrust accountability:

• See the FT editorial; "Google should be watched carefully"
• The the NYT editorial: "The Google Algorithm."

Google itself has put the issue of "search neutrality" on the map with its FT op-ed and Google blog post and by saying they are for now for search bias after being against it.

Google's proposed acquisition of ITA software to beef up the Google Travel vertical, has put on everyone's radar screen the anti-competitive potential of Google continuing to extend, tie,and leverage its global search monopoly into content verticals like travel.

The FT got the concern over vertical abuse right: "...the potential for antitrust abuse through the tying of vertical services to search raises clear concerns."  

However, the NYT missed the mark on vertical abuse: "Forbidding Google to favor its own services -- such as when it offers a Google Map to queries about addresses -- might reduce the value of its searches."  

Google strongly legitimized the problem of "search neutrality" in arguing in detail in an FT op-ed today why Google's search should not be neutral. 

The evidence mounts that Google is increasingly throwing its monopoly weight around anti-competitively without much apparent fear of antitrust enforcement. This Google antitrust update will spotlight:

1. New evidence of Google's unfettered "kingmaking" power (lack of search neutrality) to anti-competitively self-deal with highest search rankings and sabotage competitors' rankings;
2. Google's latest anti-competitive pattern of behavior, i.e. Google's wholesale-retail vertical squeeze play; and
3. Why the antitrust risk Google faces comes from the EU and the DOJ, not from the FTC.   

I. Latest Evidence of Google's Anti-competitive Search Discrimination:

Google's behavior continues to raise serious antitrust concerns about whether Google's dominant search business is treating competitors neutrally as it claims, or whether it is anti-competitively picking itself and its partners as content winners and its competitors as content losers. 

• Google's website assures users: "We never manipulate rankings to put our partners higher in our search results and no one can buy better PageRank."
• Mounting evidence indicates this representation is patently false and a deceptive trade practice. 

A. Search Discrimination: