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A Case Study of Alphabet-Google’s 2004-2018 Privacy Track Record of Evident Unfair and Deceptive Over-collection of Consumers’ Personal Data Exposes an Evident Gap in the FTC’s Remedial Authority to Protect Consumers

Submitted as a public comment for the FTC’s fall 2018 “Competition and Consumer Protection in the 21^st Century Hearings.” Topic #5: “The Commission’s remedial authority to deter unfair and deceptive conduct in privacy and data security matters” FTC Project Number: P181201; (PDF FTC submission here)

July 30, 2018; By Scott Cleland; President, Precursor® LLC  info@precursor.com & Chairman, NetCompetition®

Conclusion

This case study of Alphabet-Google’s track record of unfair and deceptive privacy and data security practices provides a compelling body of evidence of 17 major business practice examples over a fifteen-year period that indicate the FTC evidently does not have enough remedial enforcement authority to deter Google, or other Internet platforms, from engaging in unfair and deceptive conduct in privacy and data security matters.

It is also evident from Google’s words and actions chronicled below that it legally does not believe its users have a “legitimate expectation of privacy” concerning the information they provide to Google.

A recently aired CBS 60 minutes segment asked: “How Did Google Get So Big?”

The shortest answer is illegal acquisition of market power.

The simple answer is an epic bipartisan failure of antitrust law enforcement by both the W. Bush FTC, in the 2007 bipartisan approval of Google-DoubleClick; and by the Obama FTC, in the 2010 bipartisan approval of Google-AdMob, and in the 2013 bipartisan, abrupt closure of all five FTC antitrust probes of Google for a five year period.

Concerning Google antitrust, both Administrations, both parties, and both the Senate and House overseers own this bipartisan, FTC-created, Google-monopolization mess. It demands bipartisan antitrust enforcement cooperation, investigation, and solutions soonest.

Sometimes it is easy to miss the forest for the trees.

That may be the case with the outlook for the DOJ v. AT&T-Time Warner case.

In this analysis, rather than recount the legal antitrust “trees” that have been well-argued in the DOJ’s complaint brief and AT&T-Time Warner’s defense brief, and the rule of law “tree” I analyzed initially, it is important to focus on how this case is highly-unusual in one characteristic, and that characteristic begs us to try and examine the forest not the trees.

What is highly-unusual about this precedent-driven case is the Judge, U.S. District Court Senior Judge Richard J. Leon.

Please don’t miss my latest Daily Caller op-ed, “State Attorneys General Can Expose Google’s Pervasive Anti-Consumer Practices.”

Ever wonder why Google, Facebook, Twitter, Amazon, Uber, Airbnb, and their Internet Association allies are caught repeatedly enabling so many dreadful activities on their platforms? There’s minimal risk to them in doing so.

Everyone knows if there is no perceived risk for doing certain wrongs for money, many people certainly will do those wrongs, or look the other way while others do those wrongs on their property for the money, because they’ve learned they can get away with it.

It’s not only human nature, but it’s also a fundamental failure of government’s first purpose to protect its citizenry -- when zero-deterrence for certain wrongs on a certain technology is de facto American policy.

In 1996, a well-intentioned Congress passed a balanced Communications Decency Act (CDA) as an amendment to the 1996 Telecom Act, that on one hand would prevent “obscene, harassing, and wrongful utilization of telecommunications facilities” (Title V) and on the other hand, would create legal “protection for ‘Good Samaritan’ blocking and screening of offensive material” (Title II, Section 230).

Together, Congress intended that certain content was harmful, thus it made sense to provide “Good Samaritan” immunity for websites that in good faith removed the types of content the original CDA found harmful.

Conclusions:

Most of what we have learned in the five months since the election indicates that the Trump Administration is not going to be Google’s antitrust advocate and protector like the Obama Administration effectively was from 2013-2016, in de facto shutting down any real U.S. antitrust scrutiny of Google, and in turn implicitly discouraging antitrust enforcement of Google in the EU and around the world.  

This antitrust enforcement sea change has three big picture implications: for the EU, for the U.S., and for markets.

Please don’t miss my op-ed on Google in the Australian: “Google out to steal from Australians.”

As Googleopoly has done around much of the world for many years, Google is now twisting arms in Australia’s government to provide Google with blanket protection from Australians’ copyright infringement lawsuits against Google for aiding and abetting in the piracy of Australians’ copyrighted content.

The piece makes fun of Google’s claims that without protection, Google won’t have the financial incentive to innovate.

House Energy and Commerce Committee Republicans formally asked FCC Chairman Agit Pai to close the docket on the set-top box proceeding because it is no longer under active consideration, and because it “remains an unnecessary regulatory threat to the content creation and distribution industries” and casts a “shadow over investment and innovation.”

This is a wise, pro-competitive, pro-property rights, and good government request from Congress to the new Pai FCC.

The FCC should efficiently utilize this decision opportunity to employ the statutory sunset provision in the law to permanently sunset and remove this unnecessary and serious regulatory threat to competition, copyrighted contractual content and its creation, investment, and innovation.

This analysis of the competitive facts underlying AT&T’s acquisition of Time Warner is an outgrowth of my discussion of the acquisition on NPR’s Diane Rehm Show this morning with Cecilia Kang of the New York Times and John Bergmeyer of Public Knowledge. The show can be heard here.

My main point was that the competitive facts are the best friend of this transaction.

I elaborate on that conclusion below.

The key facts lead me to believe the transaction should and will be approved, most likely by the DOJ, because of: the antitrust-benign competitive share facts in all the relevant markets; the antitrust precedents that constrain the DOJ’s ability to successfully challenge in court a vertical merger with these benign shares; and the companies have signaled they understand that if any legitimate competitive concerns arise they can be mitigated successfully with conditions and DOJ oversight of the transaction.    

If officials examine the competitive facts of this acquisition with an open mind and with due process, they’ll discover first impressions can be very misleading.

The FCC’s proposed broadband privacy rules are haphazard and have more random and conflicting “gaps” than Swiss cheese has holes. 

That’s because the FCC’s approach to privacy is obviously jurisdiction and technology driven, not consumer-driven.

When will the FCC put consumer privacy protection first, and join with the FTC to work with Congress to comprehensively update privacy legislation for the 21^st century?

Consumers deserve so much better than this.  

Let’s count the arbitrary and haphazard privacy gaps in the FCC’s proposed privacy rules.