Tag: FTC

Posted on By Stuart N. Brotman

Privacy Policy Research Deserves a Much Wider Audience

The Federal Trade Commission (FTC) hosted its fifth annual PrivacyCon on July 21, 2020.  This was the first time the one-day conference was fully remote, rather than in person at the FTC’s Bureau of Consumer Protection in Washington, D.C.

PrivacyCon should not be confused with Comic-Con, the annual pop culture extravaganza that began the following day with over 350 virtual panels extending over nearly a week.  Perhaps the thousands who show up there each year in San Diego with colorful costumes will not miss a beat as they turn on their Zoom cameras to participate in a way never imagined when this year’s Comic-Con was organized.

Continue reading “Privacy Policy Research Deserves a Much Wider Audience”
Posted on By Patrick Maines

Google’s Impact on Journalism

The products and services offered by Google are well known and highly regarded.  Every day, millions of consumers around the globe visit the company’s search engine or sites like Google News or YouTube.  And for this, the company’s employees and (especially) its founders have been well compensated.

But there’s another side to Google that consumers know very little about.  That is Google the corporation, and the effect its business practices are having on competitors, and most dramatically on the professional media, news and entertainment alike.

In important measure, people know little about Google the corporation because news stories and commentary about the company’s business practices are mostly confined to industry trade publications, or technology and economic journals.

Even the public policy issues that the company addresses are complex, and hard to write about in a way that wouldn’t cause most readers’ eyes to glaze over.  How, for instance, would one popularize such issues as the district and appellate court rulings in Viacom v. YouTube, or the FCC’s “network neutrality” proceedings, or the FTC’s recently concluded investigation of Google’s search and advertising policies?

So it’s easy to understand why the public at large doesn’t know much about Google’s role in these matters, but book and newspaper publishers do.  So too do movie studios and Google’s competitors in the online travel business, to name just a few.

And what all of these other companies know is that Google’s scale, business tactics, and aggressive lobbying amount to a distinct threat to their very existence.  A single datum provides a startling view of the challenge: Through the first half of 2012, Google by itself took in more ad dollars than the entire U.S. print media, magazines and newspapers, excluding only the ads on newspaper websites, which even today generate only about 25 percent as many ad dollars as print advertising.

The ways in which Google uses its dominance in search to monetize, by corralling and aggregating (without permission) the content of others, is a story that is long in telling.  But a common feature, as stated in a White Paper submitted to the FTC in 2011 by The Media Institute, is that Google’s “main search page biases Google News results over results of news organizations and other publishers.”

Nor is this the perception and complaint just of American publishers.  On June 25, a coalition of hundreds of Europe’s leading publishers urged the European Commission, which is the EU’s antitrust authority, to  reject outright some remedies that Google offered to end an investigation by the Commission of the same kind of practices the company is accused of by publishers on this side of the Atlantic.

As summarized by GigaOm, “Google is accused of surreptitiously favoring its own services in its search results, locking advertisers onto its platform and scraping content from rival, subject-specific search engines.”

In elaboration of the European publishers’ rejection of Google’s proposals, the president of AEDE, a Spanish association of daily newspapers, put it this way: “In short, Google’s proposed remedies do not address the overarching problems and fundamental harms that Google’s conduct causes in search-related markets and none of them aims at restoring effective competition….  In some ways, they might actually make matters worse by entrenching dominance and misleading consumers.”

Here, as in Europe, the principal venues of appeal for those being harmed by Google’s business practices are the antitrust authorities, which is to say quasi-political bodies.  And that’s a problem. In this country, the FTC has already dismissed an opportunity to do a full antitrust review of Google, in part, we can speculate, because there is no great public support for the news media generally.

Indeed, a Pew poll, released on July 11, found that only 28 percent of respondents believe that journalists “contribute a lot,” down from 38 percent four years ago.  And a Gallup poll, published on June 17, revealed that only 23 percent of the public have “overall confidence” in newspaper and TV news.

Given this lowly rating by their own customers, one might be tempted to dismiss the news media’s cannibalization by Google as something they had coming to them, and there’s an element of truth in that, as with the special contempt for them that the media have inculcated in conservatives and Republicans.

But there’s a much larger issue involved in Google’s anti-competitive behavior, and that is whether this (or any) country will in future have a robust and profitable news media industry, marked not by opinion but by objective news, investigative, and feature reporting.  Surely people of all political persuasions can agree that blogs and content aggregators are not going to fill that role.

At a time when the Internet is obliging mainstream news outlets to publish online, it is not yet clear whether a way can be found to make up, in that process, for the necessary advertising revenue that once came their way – a problem not confined just to the legacy media but to prospective newer entrants in the news reporting business as well.

And it is at this crossroad where Google, the company whose fraying motto is “Don’t be evil,” may prove decisive.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in USA Today on July 19, 2013, under the headline "Beware of Google’s Power."

Posted on By Patrick Maines

Google, the FTC, and ‘Plausible’ Justifiability

Though it was surely not its intention, the Federal Trade Commission’s conclusion last week of its investigation of Google invites the question: What useful function does the FTC serve?

Not content, after two years of investigation on the taxpayers’ dime, to largely look past the mountain of evidence of marketplace harm caused by Google’s search and advertising practices, the Commission compounded that error by declining to issue a formal consent order, leaving it in the hands of Google itself, without the prospect of penalty, to change some of its business practices.

As even Commissioner J. Thomas Rosch said in his statement of concurrence and dissent, the FTC’s “settlement” with Google “creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the Commission.”

In elaboration of his dissent from the settlement procedure, Comm. Rosch added this:

Instead of following standard Commission procedure and entering into a binding consent agreement to resolve the majority’s concerns, Google has instead made non-binding commitments with respect to its search practices….

Our settlement with Google is not in the form of a binding consent order and, as a result, the Commission cannot enforce it by initiating contempt proceedings.  The inability to enforce Google’s commitments through contempt proceedings is particularly problematic given that the Commission has charged Google with violating a prior consent agreement.

What Comm. Rosch delicately calls “special treatment,” the more cynical of us would recognize as political influence peddling, a practice that Google has become quite adept at employing.  First it bankrolled the codification, at the Federal Communications Commission, of “net neutrality” regulations, thereby providing a solution to a nonexistent problem; then it led the successful opposition to the PIPA and SOPA copyright bills, the better to protect its investment in YouTube; now it has neutered the FTC, with the consequence being that it can continue to game its search results in ways that favor companies it controls.

So how has Google managed such political feats?  Well, would you believe that money has played a role?  In the FTC investigation alone Google reportedly spent some $25 million lobbying the matter.  To give an idea of the magnitude of this kind of spending, it equals 10 percent of the FTC’s total annual budget of $250 million.

But in addition to its FTC-specific lobbying, it’s well known that Google has cast its lot, through munificent campaign contributions and public policy support, with the current administration. Though it failed to come to pass, there was undoubtedly substance to the rumor that Google’s Eric Schmidt was being considered for a cabinet post in the Obama Administration.

Even so, there is evidence that the FTC commissioners know what they have done.  Their concluding statement about Google’s search practices, for instance, displays an almost comical defensiveness as they contend that, even if Google’s search practices favor its own companies, that is arguably okay:

In sum, we find that the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification.  Rather, we conclude that Google’s display of its own content could plausibly (emphases added) be viewed as an improvement in the overall quality of Google’s search product….  Although at points in time various vertical websites have experienced demotions, we find that this was a consequence of algorithm changes that also could plausibly be viewed as an improvement in the overall quality of Google’s search results….

Although our careful review of the evidence in this matter supports our decision to close this investigation, we will remain vigilant and continue to monitor Google for conduct that may harm competition and consumers.

Such limp-wristed rhetoric aside, there is a chance that Google will be brought to heel, just not by American authorities.  As it happens, the European Commission has also been investigating Google’s misdeeds, and the odds are good that, lacking the kind of political clout in Europe that it has in the USA, the company may actually receive from the Europeans something more than just a slap on the wrist.  On Dec. 18 the Commission gave the company 30 days to provide it with proposals to settle its complaints, something that could cost Google billions if it fails to do so.

Whatever the Europeans do, however, there remains the FTC’s foozled play, well put in a Bloomberg News editorial:

The FTC missed an opportunity to explore publicly one of the paramount issues of our day: Is Google abusing its role as gatekeeper to the digital economy?  Lawmakers, economists, other regulators, and consumers should all be in on this important debate over whether Google is leveraging its overwhelming dominance of search into unassailable market power in other areas. 

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Kurt Wimmer, Esq.

Google and the First Amendment

By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

I just had the privilege of participating in a panel discussion at an American Antitrust Institute conference.  My panel included such luminaries as Eli Noam of Columbia, Gene Kimmelman of the Antitrust Division of the Department of Justice, and Susan DeSanti of the Federal Trade Commission.  Unlike many of my colleagues on the panel, I’m far from being an antitrust expert.  My topic was a more familiar one – whether enforcement of antitrust law against a search and advertising provider would violate the First Amendment. 

The question arises because of a novel proposition being advanced by Google.  The Federal Trade Commission is investigating claims that Google has violated antitrust law by manipulating search results to favor its own services and bury the services offered by vertical search engines that might compete with Google.  Google has argued that it is absolutely immune from antitrust liability because its search results constitute speech protected by the First Amendment – in fact, it asserts that the First Amendment actually “blocks” the application of antitrust law to it.  Google analogizes its work to that of a newspaper editor selecting information for publication, and seeks the same “absolute” protection that a newspaper editor would receive under the First Amendment.

But wait – newspaper editors don’t receive absolute protection under the First Amendment.  If editors’ work is absolutely protected, why did I spend last night discussing a story with an editor to mitigate defamation risk?  Why did I defend a deposition last week of a reporter attempting to keep his source confidential?  Why have reporters gone to prison in the United States to protect sources?  Why are some in Congress talking about doubling down on legal restrictions to stop leaks to the press?

The First Amendment is not absolute, and never has been, for anyone, whether they run a newspaper, a blog, or a search-and-advertising business. False and deceptive speech, as Google’s manipulated search results are alleged to be, falls outside the protection of the First Amendment.  Jon Leibowitz, chairman of the FTC, made precisely this point in an All Things Digital interview just this month, and he’s precisely right as a matter of constitutional law.  Otherwise, the FTC would have no jurisdiction to enforce privacy laws or laws against false advertising and deceptive trade practices.

Of course, non-deceptive speech also may be regulated in many circumstances.  The antitrust laws, which regulate commercial behavior to promote competition, are an example of laws that may permissibly restrict certain kinds of speech.  The plain fact is that “the First Amendment does not provide blanket protection to restraints of trade effectuated through speech,” in the words of the Department of Justice.  This principle has been applied consistently since the Supreme Court affirmed an antitrust judgment against the Associated Press in 1945, and remains the law today.

Google’s arguments that it is uniquely immune from antitrust liability, regardless of how it has abused its massive market share, remind me of the quaint musings of early Internet pioneers that law cannot apply in “cyberspace.”  But the same law that applies offline generally applies online (in the absence of online-specific legislation such as Section 230), and damage to competition that may occur on the Internet can destroy real businesses in the real world.  No one is above the law – not even Google.  Whether any of the allegations against Google can be proved, of course, remains to be seen.  But to assert at the very outset that the First Amendment actually “blocks” liability, regardless of what the FTC or a court might find, ignores the law.

If you’d like to read more, the Media Institute has graciously agreed to host my paper (available here) that addresses these issues in more depth.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

The Truth Behind Google’s Copyright-Bills Hysteria

Though the final chapter in the legislative history of the copyright bills hasn’t yet been written, a couple things are obvious even now: The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.

This provides the background for what happened within just a few days last week, as Congress was flooded with calls and mail, and petitions were signed by millions, in opposition to bills whose intent was to provide an effective way to combat content infringement on rogue websites abroad.

Didn’t matter that most fans of social media, file-sharing, blogs, and the like know next to nothing about communications policymaking, or even the details of the laws they were moved to oppose.  They know what they like, and dislike, and when manipulated into seeing the copyright bills as a threat they responded in great numbers.

None of which, of course, is to wonder why people feel more of a kinship with things like the social media than they do with the mainstream media.  The one-way and “one-to-the-many” aspects of the old media don’t empower people, or allow for their personal expression, in the manner of blogs or social media like Facebook and YouTube.

But the reason so many people were disposed to dislike the copyright bills, and their knowledge of what was actually in them, are two different things.  What moved them to act on their dislike was yet another.  For these parts of the story we have to look to the tech industry lobby, and Google most importantly.  It was Google that floated the canard that passage of the bills would forever change “the Internet as we’ve known it.”

The irony in Google’s claim was apparently lost on most of the media, tech and mainstream, which may explain why so few reporters pointed out that this alleged threat is word-for-word what the company said, 13 years ago, in opposition to another copyright bill (the Digital Millennium Copyright Act), passage of which has since proven to be a positive boon to Internet companies.

It may also explain why so few reporters pointed out that Google’s claims about the copyright bills – as precursors to the regulation of the Internet – are not just over the top but hypocritical.  It was, after all, Google that successfully lobbied, with the active help of a majority of FCC Commissioners, for so-called “network neutrality” regulations, the precedent of which provides not for just speculative but “here and now” regulation of the Internet.

Still, if crass exaggeration and hypocrisy were all that Google displayed in this regard, one might be inclined just to dismiss it as boys being boys.  But it didn’t stop there.  Google, and other groups that should know better, also gave expression and currency to the bunkum that the copyright bills amounted to an assault on the First Amendment.

That this argument was utterly demolished by the country’s leading First Amendment expert, Floyd Abrams, didn’t give them a moment’s pause, with the upshot being that this nonsense was parroted by all sorts of people as a reason for rejection of the bills.

In August of last year, The Media Institute filed a white paper with the Federal Trade Commission titled “Google and the Media: How Google is Leveraging its Position in Search to Dominate the Media Economy.”  Among other things, the paper demonstrated the ways in which Google profits from copyright infringement; that indeed the use of other people’s content without their permission has been at the heart of the company’s business plan.

Though the paper didn’t recommend any particular remedy, it asked the FTC to intervene in a way that would prevent the media economy from being dominated by a single entity.  Google’s conduct regarding the copyright legislation shows that, far from pulling back, its interest in this kind of domination is growing apace.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in the Dallas Morning News on Jan. 25, 2012.