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Why FTC Can't Responsibly End the Google Search Bias Antitrust Investigation -- Part 11 Google Unaccountability Series
Submitted by Scott Cleland on Tue, 2012-11-27 17:41
Press reports indicate that some at the FTC may be questioning if there is sufficient evidence to prove in court the search bias charges recommended by FTC prosecutors. What the media surprisingly has yet to report is that the FTC still has not yet gained access to the thousands of known and likely most-incriminating Google emails and documents that Google has withheld from antitrust investigators -- per the Texas Attorney General's petition to a Federal Court last June.
Intimations that there is no search bias case to prosecute when Google clearly has stonewalled and not fully cooperated with antitrust investigators impugns the integrity of the FTC law enforcement process. These intimations also suggest that Google thinks that its case will be not be decided on the law, merits and evidence, but on political pressure it can bring to bear on the prosecution decision or settlement process.
While in this legal circumstance the FTC could vote to go forward with a search bias case against Google based on its evidence and the evidence uncovered by the bipartisan Senate investigation, the FTC could not responsibly vote to end its search bias investigation and/or rush to accept a weak settlement when it knows that it has not collected or seen potentially the most incriminating evidence in the case because Google has aggressively withheld it, most likely in order to manipulate potential settlement negotiations to its advantage.
Simply, the integrity of the FTC law enforcement process requires that the FTC not absolve Google of any legal liabilities caused by its market behavior when the FTC knows that it has not examined the potentially most-relevant and most-incriminating evidence against Google in this matter that could bolster its case and its settlement negotiating leverage. Any rush to artificially and prematurely wrap up this investigation to Google's benefit while ignoring the existence of known critical evidence could send an unambiguous signal to complainants that they should seek other forums for any redress from potential illegality by Google.
The Evidence Trove Google is Withholding
The most curious, glaring and inexplicable deficiency in the FTC's investigation of Google search bias has been that the FTC has not joined the Texas Attorney-General petition in Federal Court to see these potentially highly-relevant emails and documents, since they could contain the "smoking gun" evidence that some at the FTC want to see to bulletproof the FTC's potential case against Google.
The relevant point here that apparently most everyone, including the media, has missed here is that if Google has asserted attorney-client privilege to keep the Texas Attorney General from examining subpoenaed documents, then that legally means that the FTC nor anyone else has examined these documents, because if they had, Google's asserted attorney-client veil of protection for those particular documents would have been pierced and Google would then be acting in bad faith in Federal Court having shared certain documents with some government officials without asserting attorney-client privilege, but withholding them from others based on attorney-client privilege.
Why hasn't the FTC challenged Google's very aggressive assertion of attorney client privilege? DOJ or other prosecutors routinely do not accept the word of the entity they are investigating. They routinely challenge blanket assertions of attorney client privilege to winnow down what documents are legitimately attorney client privilege under the law and which must be supplied to investigators under the subpoena (Civil Investigative Demand).
The irony here is that in investigating whether or not Google has any bias to favor its own content over competitors, the FTC apparently did not appreciate Google has a natural bias in discovery to thwart prosecutors, thus requiring FTC investigators to persistently follow-up as the Texas AG has with dramatically less investigative resources than the FTC.
What's remarkable is that the subpoenas Texas is asking the court to enforce were from July 29, 2010, and May 27, 2011. Thus Google effectively has stonewalled law enforcement in this case for over two years and for the last year and a half the FTC investigation apparently has not sought to see the Texas AG-identified best potential evidence of wrongdoing.
What is more remarkable is that the legal "burden of demonstrating that a privilege applies," rests with Google not the Texas AG or the FTC.
What's even more remarkable is that Google is sweepingly claiming that any email or document which has a Google lawyer cc-ed on, is privileged, even if it only discusses business and management decisions and does not involve any legal advice. Please read the Texas AG petition to confirm that Google apparently is aggressively stonewalling the investigation.
In sum, the fact that the FTC has not yet examined the potentially most relevant and incriminating, publicly-known emails and documents, spotlights that its investigation cannot responsibly conclude Google has not engaged in search bias given the publicly-known evidence to date and the evidence gathered under oath by the bipartisan Senate investigation.
This suggests the future holds either: additional FTC investigation to learn more from these known relevant emails; an FTC referral of this case to the DOJ like it did with Microsoft twenty years ago; an FTC enforcement suit of some kind; or a tough settlement where Google admits to having market power and extending anti-competitively its market power via search bias; and agrees to abide by a robust oversight enforcement mechanism to ensure that it does not continue its anti-competitive extension of market power in the future.
Google Unaccountability Series:
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"