Privacy

EU officials, who believe normally-big-fines by themselves will be enough to deter Google’s illegal antitrust and privacy abuses, are making a profound miscalculation about what actually motivates and deters Google.

Google’s leadership is not motivated primarily by money, but overwhelmingly by the power and influence of “changing the world” by scaling most every facet of data, computing, and connectivity, first and fastest.

Google’s leadership understands the Internet marketplace is really a simple first-mover race to scale -- and that any fines along the way, without serious limits on Google’s power, are insignificant nuisances.       

Google is unlike any other company EU law enforcement has confronted.

Google’s wiretapping is back in the news. The Guardian reports “Google [Chrome] eavesdropping tool installed on computers without permission.”

This is not an isolated incident. It is a part of a broader Google pattern of behavior.

What should be big news and scandalous here is that the company that has gathered the most Internet users in the world based upon public representations of being pro-privacy and open -- is secretly engaged in widespread wiretapping.  

Wiretapping is illegally intercepting and recording people’s communications without their knowledge or consent. In the U.S., wiretapping is a criminal offense punishable by a fine and up to five years in prison.

After successfully taming the FTC and the DOJ via the intimidation of politically placing seven former Google executives or consultants in senior positions in most every major federal policy or law enforcement area of legal or commercial interest to Google Inc., Google has turned its intimidation modus operandi on the only American law enforcement arm that apparently remains willing to investigate and enforce the law when it comes to Google – state attorneys general.

Just as people have come to appreciate that with Google you are not the customer, you are the product, with Google automated vehicles people will come to appreciate that Google is the driver and you are the package to be delivered. 

As the runaway PR leader in this emerging category of transportation, Google interestingly steered the branding of this new category towards misleading misnomers for these vehicles.

They are not truly “self-driving,” “driverless,” or even “autonomous” cars; they are very much cars driven and governed by the company whose software and algorithms automate, control, and drive the vehicle.

If you doubt these are actually Google-driven cars, the software that drives them is called “Google Chauffeur.”

Google’s unique vision is for Google-driven cars to have no steering wheel, brake pedal or accelerator; so no one possibly could drive such a vehicle but Google.

Below is my op-ed “Privacy’s Big Three” on the FCC’s pending interpretation of its newly asserted Title II section 222 privacy authority. It is a side-bar in this week’s Multichannel News cover story “Who’s Watching Whom?” Click here for the full Multichannel article.

This succinct op-ed spotlights the three biggest privacy questions the FCC must grapple with here:

1. Any privacy protection predictability?
2. Any competitive privacy policy parity?
3. An FCC Do Not Track List?    

Privacy’s Big Three

The latest example of Google’s well-established pattern of callous corporate irresponsibility and willful blindness is reporting by the Washington Post that: “If you search Google Maps for the N-word, it gives you the White House.”

Tellingly, Google’s corporate policy of crowd-sourcing without curation/corporate supervision of Google Maps systemically yields racist labels for innumerable places per Danny Sullivan’s analysis of the pervasive problem at MarketingLand.  

Most have missed entirely the broader significance of the EC-DGComp’s laser-focused Google Statement of Objections (that charge Google is dominant in search and is abusing that dominance in Google Shopping by self-dealing via preferencing Google content over competitors’ content) in the broader context of the EU’s new “platform neutrality” principle to advance a European Single Digital Market.

To date, Google is the only digital company that the EC-DGComp has found to be an abusively dominant “platform” warranting a non-discrimination remedy that Google cannot self-deal. A primary allegation driving the EC’s new antitrust investigation of the Google-Android platform is that Google self-deals by design in requiring Google Search and other Google apps to be offered to users by default on Android.

The significance of what DGComp and the EU do on Google-Android “platform neutrality” could turn out to be the single most important element long term for the European Single Digital Market.

Why?

Android is rapidly becoming Europe’s (and most of the world’s) single dominant digital operating system that increasingly will have the market power to dictate who wins and who loses throughout the markets for digital devices, the Internet of things, the connected home, the connected car, etc.

Will the FCC create an Internet “Do Not Track” list like the FTC created the “Do Not Call” list enjoyed by three quarters of Americans?

In ruling the Internet to be subject to common carrier consumer protection law, the Obama FCC’s recently passed Open Internet Order applied common carrier privacy law (Section 222) to Internet telecommunications as part of the FCC’s unilateral efforts to modernize communications law for the 21^st century.

The Obama FCC’s Open Internet Order also ruled that the Internet now encompasses the Public Switched Telephone Network (PSTN) and that an IP address is the functional equivalent of a telephone number.

Thus, logically it could follow that information that’s considered legally private in the telephone world now could be considered legally private in the Internet world.   

This central consumer protection question should come up this week as the FCC hosts a Section 222 public workshop to explore the FCC’s “role in protecting the privacy of consumers who use” the Internet.

What is Section 222?

It is a common carrier provision of the Communications Act entitled “Privacy of Customer Information.”

Just when Google needs it most, its political bag of tricks to dodge antitrust enforcement may be running out.

Reports that the EC is likely to issue a Statement of Objections ruling soon -- that Google is >90% dominant in search and search advertising and has illegally abused that dominance by promoting Google’s content and demoting competitors’ content -- indicates Google finally may be facing a global antitrust inflection point.

A tough EC SO would be a game-changer for Google, like the 2000 U.S. District Court case that ruled Microsoft an anti-competitive monopoly, proved to be a game-changing, global antitrust inflection point for Microsoft.  

Substantively on the merits of the EC antitrust case, Google appears to have little room to maneuver. The EC effectively agrees with the FTC’s staff antitrust conclusions per the leaked FTC staff report. That finding is highly problematic for Google because: EU competition law is much tougher than America’s; Google’s relative >90% market dominance in Europe is much greater than in the U.S.; and Google doesn’t have the dominant political influence over Europe that it does with the U.S. Executive Branch.

The FTC’s politically messy closure of the FTC-Google antitrust investigation in 2013, chronicled in “Googlegate: the FTC Cover-up Evidence Piles Up,” is not the only major Federal investigation into Google’s business practices that Google’s political influence appears to have made go away in 2013.