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Troubling Irregularities Mount in FTC Commissioners' Handling of Google Antitrust Investigation -- Part 14 Google Unaccountability Series

The mounting number of unprecedented, inexplicable, and troubling irregularities in the FTC's cumulative law enforcement record of Google warrants oversight by Congress and renewed vigilance by other law enforcement officials -- State Attorneys General, the DOJ, and the European Commission -- in order to maintain the integrity and deterrent value of the antitrust law enforcement process.

Each of the following sets of facts and circumstances in the FTC's law enforcement experience with Google have raised eyebrows, together there is head-shaking cumulative evidence that reeks of either special treatment for Google or political interference by Google in the process.

Consider the following evidence to judge for yourself if something appears amiss here.

Only Google has been able to get FTC commissioners to twice politically overrule staff recommendations to prosecute after in-depth antitrust investigations, in approving Google-AdMob despite "serious concerns," and in rushing to close the current Google search bias investigation without seeking the most incriminating evidence available.

Three months after the FTC finalized the FTC-Google Buzz settlement to resolve a Google deceptive practices violation of Section 5 without Google having to admit any wrongdoing, Google violated the settlement by hacking into Apple's Safari browser to secretly bypass iPhone users' privacy settings per the WSJ. In a 4-1 FTC settlement fining Google $22.5m for Google's violation of the Google-Buzz consent decree, the FTC allowed Google to again not admit any wrongdoing, despite the fact that the original decree requiring no admission of wrongdoing obviously had little deterrent value.

Why would FTC commissioners rush to drop a case against Google for systematic misrepresentation of search objectivity to the public, just eight months after the FTC commissioners learned that Google systematically misrepresented its Street View WiFi actions to the public and the FTC, and "deliberately impeded and delayed" a Federal FCC investigation? Having been badly fooled once by Google to prematurely close down an FTC-Google investigation before all the evidence was examined, why would a serious law enforcement entity risk repeating the same mistake again eight months later in the highest profile antitrust investigation in the last decade?

Why would the FTC commissioners close down the Google search bias investigation when they have not seen or attempted to gain access to the potentially most relevant and incriminating emails in the case that the Texas Attorney General is seeking access to via a Federal Court injunction? If the FTC was serious about prosecuting Google, why did it not join the Texas Attorney General's petition to the court to gain access to this critical evidence? Why isn't the FTC cooperating with State Attorneys General antitrust investigations of Google?

Why does the FTC trust Google and take Google's representations at face value when Google: has well-established track records of misrepresentation and obstruction of justice; has a poor and defiant settlement record; has the single worst antitrust record in the Fortune 1000 over the last several years; has the worst privacy record in the Fortune 1000 over the last decade; had engaged in systematic criminal illegal drug marketing over a period of several years despite repeated law enforcement warnings; has engaged in systematic theft and infringement over the last decade; and has an unabashed culture of unaccountability?

  • Generally law enforcement is less trusting, more committed, and more hard-line when dealing with hard core recidivists than the FTC is with Google. Why does the FTC go so easy on Google given their record?

Why did the FTC: hire a high-profile outside prosecutor in April; hire a high-profile economist in early October; let it be known in mid-October that the FTC staff sent a 100-page memo recommending prosecution of Google for search bias and that a majority of commissioners supported prosecuting Google for search bias; tell Google in late November to propose a resolution of the search bias problem or face an antitrust lawsuit; get strong support in early December from the European Commission Competition authorities that they were going forward with their prosecution of Google… only to inexplicably and abruptly cave and reportedly accept unenforceable Google "voluntary changes" to its search and search advertising practices?

  • What happened to abruptly flip this enforcement dynamic 180 degrees from an all-in tough prosecution stance to a full capitulation and retreat stance with no search bias sanctions or enforcement?
  • Why is there such a frantic rush to bury the outcome by year-end during the Congressional recess when the fewest people in Congress or the media will be paying attention?
  • Why not either continue the FTC investigation to address criticisms from commissioners or allow the EU to go ahead with their prosecution?
  • Why would the FTC help Google undermine other law enforcement jurisdictions by abruptly closing the Google search bias investigation before the other jurisdictions act?
  • Why would the FTC want to give Google no law enforcement incentive to follow through on its "voluntary changes" or ensure that they are real, sincere and effective in practice?
    • By not ending the investigation and keeping it open for at least the period the FTC wanted a Consent Decree for, the FTC could ensure that Google has at least a minimal amount of incentive to not engage in the search bias the FTC was intent on prosecuting Google for only a couple of weeks ago.

When the FTC fought to have jurisdiction to investigate Google for search bias from the DOJ, the FTC argued that the FTC's additional Section 5 authority had a lower legal threshold for proving consumer harm. Unlike the Sherman Act, Section 5 requires only proving deception and not consumer harm because Congress already decided in the Section 5 law that deceptive practices harmed consumers.

  • Now the FTC commissioners are unwilling to charge Google under their Section 5 authority, despite having sued Intel for antitrust violations under Section 5 and settled.
  • Why could the FTC sue Intel in 2009, under Section 5, and get a tough settlement, but cannot sue Google or attract a tough settlement from Google under Section 5?

In sum, the alarming volume of unprecedented and inexplicable irregularities in the FTC's cumulative law enforcement record of Google is troubling and warrants oversight by Congress and renewed vigilance by other law enforcement officials -- the State Attorneys General, the DOJ, and the European Commission -- in order to maintain the integrity and deterrent value of antitrust law enforcement process.

If the FTC is unwilling or unable to enforce antitrust law against a serial corporate scofflaw, whose abuse of market power affects an estimated 240 million Americans and ~$170 billion in ecommerce, other law enforcement agencies must step up and fill the void.

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Google Unaccountability Series:

Part 0: "Google's Poor and Defiant Settlement Record"

Part 1: "Why Google Thinks It Is Above the Law"

Part 2: "Top Ten Untrue Google Stories"

Part 3: "Google's Growing Record of Obstruction of Justice"

Part 4: "Why FTC's $22.5m Privacy Fine is Faux Accountability"

Part 5: "Google's Culture of Unaccountability: In Their Own Words"

Part 6: "Google Mocks the FTC's Ineffectual Privacy & Antitrust Enforcement"

Part 7: "An FTC Googleopoly Get Out of Jail Free Card?"

Part 8: "Top Lessons to Learn for Google Antitrust Enforcers"

Part 9: "Google Mocks EU and FTC in Courting Yahoo Again"

Part 10: "FTC-Google Antitrust: The Obvious Case of Consumer Harm"

Part 11: "Why FTC Can't Responsibly End the Google Search Bias Antitrust Investigation"

Part 12: "Oversight Questions for FTC's Handling of Google Antitrust Probe"

Part 13: "Courts Not FTC Should Decide on Google Practices" The Hill Op-ed

 

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