How The FTC Screwed Up The Google Investigation

How The FTC Screwed Up The Google Investigation

The US Federal Trade Commission’s reported closing of its Google search bias investigation, with no real enforceable settlement mechanism and a special new self-enforcement antitrust precedent apparently only available to Google, raises serious questions about the integrity of the FTC’s law enforcement process and whether the FTC accords Google with special treatment not available to other companies.

Why didn’t the FTC treat Google like they treated Microsoft in the ’90s, even while they have been doing the same and even worse things? Why did they drop their investigation when staff and State Attorneys General recommend prosecution and the European Union is prosecuting Google? Scott Cleland has some questions that perhaps you may want to ask your representative

This matter raises many more troubling questions than the top 10 unanswered questions raised in this piece, but these questions zero in on many of the most glaring irregularities for Congressional overseers, the media and government watchdogs to follow up on.

1. Why does the FTC believe that they can trust Google to faithfully self-enforce: when Google violated the FTC’s Google-Buzz enforceable privacy consent decree in just eight months with the Google Safari hack; and when Google badly hoodwinked the FTC with voluntary promises to prematurely shut down its Google Street View Wi-Fi investigation, when the FCC’s investigation subsequently concluded that Google systematically misrepresented its Street View Wi-Fi actions to the public and the FTC, and “deliberately impeded and delayed” the FCC’s investigation?

2. Why is the FTC affording Google a special voluntary self-enforcement standard under Section 5, when it sued Intel under its Section 5 authority and required an enforceable consent decree after a similar long investigation and a similarly strong staff recommendation for prosecution?

3. Why does Google warrant a special self-enforcement standard, when Google owns the single worst antitrust and privacy record of any major U.S. corporation; has well-established track records of misrepresentation and obstruction of justice; and owns an unabashed culture of unaccountability? (Is the FTC setting a perverse new precedent that the worst antitrust recidivist warrants the most leniency from prosecution — directly contradicting the Administration’s promise of strong antitrust enforcement?)

4. How does it protect consumers from deceptive practices for the FTC to rush to close its 20-month-long Google search bias investigation, when waiting just a few weeks longer, would let the FTC learn what enforceable consumer protections Google will offer European consumers for deceptively biasing search results? (And why isn’t this obviously material information critical to maintaining the integrity of the FTC’s investigation and its law enforcement process?)

5. How can FTC Commissioners accurately claim there is insufficient evidence to prosecute Google, when they are fully aware that the FTC has not sought to examine the potentially most incriminating evidence proving Google anti-competitive search bias intent identified by the Texas Attorney General? (How does it advance the integrity of their law enforcement process for the FTC to blatantly look the other way on this?)

6. Why are FTC Commissioners apparently going out of their way to orchestrate protection of Google from the prosecution and accountability, when their staff investigators recommended prosecution, the FTC Chairman repeatedly threatened prosecution, State Attorneys General recommend prosecution, and the EU authorities are prosecuting Google? (How does closing down the investigation better serve consumer protection interests here than keeping it open?)

7. If promising 240 million American consumers unbiased search when routinely and opaquely providing them with biased search is not a deceptive business practice, what is? (Is the FTC setting a new precedent here that misrepresentation actually can be net-good for consumers if accompanied with enough ancillary innovation and consumer benefits?)

8. Why did the FTC apparently conclude it could not prosecute Google under Section 5 when the FTC: recently did with Intel; argued the FTC was best suited to investigate Google because of Section 5; the FTC signalled its investigation found Google Section 5 violations; and the FTC has found Google has violated Section 5 on privacy twice?

9. In the highest profile antitrust investigation of the 21st century, how many times did the FTC Commissioners meet publicly and/or in closed session to discuss this important Google antitrust investigation? (Under the Sunshine Act, no more than two FTC commissioners may meet together in private, unless the topic of the private matter is publicly reported. It appears from the FTC’s public records, (if they are accurate) that the full FTC has not met either publicly or in closed session to discuss, debate or further investigate the merits and strengths of the FTC staff’s recommendation to prosecute Google for search bias. If the full commission did not meet together to discuss the Google case, like it has in antitrust cases involving other companies under antitrust investigation, this would add yet another FTC special Google treatment irregularity to the many documented here and before. Why would Google warrant such special beneficial process treatment from the FTC?)

10. Why have DOJ-Google antitrust investigations yielded a 4-0 record of successful antitrust enforcement action or enforceable settlement, and the FTC-Google antitrust investigations have yielded an 0-3 record of no successful antitrust enforcement action or enforceable settlement? (DOJ: 2008, 2010, 2011, & 2011; FTC: 2007, 2010; & 2013.)

These core questions strongly suggest that the Google search bias problem will not go away — as much as Google and the FTC apparently want them to — and will continue to dog Google and the FTC until appropriately and fairly resolved by the overall law enforcement process.