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Inside Google » Anti-Trust A Consumer Watchdog Investigation Thu, 28 Aug 2014 02:57:15 +0000 en-US hourly 1 EU’s Google Antitrust Deal Beats FTC, But Still Doesn’t Do Enough Mon, 15 Apr 2013 23:43:27 +0000 Details of Google’s proposed settlement with the European Union to avoid antitrust charges have been leaking out of Brussels over the weekend. And while EU competition authorities appear to have accomplished more that the gentle tap on the wrist meted out by the U.S. Federal Trade Commission, the deal as so far revealed doesn’t do enough to end Google’s anti-competitive practices.

The provisions of the EU agreement still have to be publicly released, but based on what’s emerged so far, here’s the good news: Unlike the deal with the FTC, which wasn’t even a consent agreement, the EU is demanding that the settlement would be legally binding for five years.  A third party would ensure compliance and Google would face fines of 10 percent of its global annual sales if it fails to keep its promises.

The bad news is that instead of requiring Google to change its algorithm and treat all services the same, the deal will apparently allow Google to continue favoring its own services in search results so long as it labels them as its own.

Google essentially has been using its dominant position as gatekeeper of the Internet to unfairly promote its own service at the expense of competitors and consumers.  In Europe it has about 90 percent of the search market.  In the U.S. it’s around 70 percent. About all this agreement appears to do is require Google to be transparent about the way it unfairly abuses its market position.

Indeed, labeling could actually leave the impression with some consumers that the Google-branded result was a better one, rather than one that received a better position because Google had its thumb on the scale.

Another problem with the deal is that it doesn’t seem to do anything to rectify the damage to the market that Google has already wreaked.  I’d have thought some sort of  disgorgement of the Internet giant’s ill-gotten gains would have been appropriate.

The next step in the EU process is for the Google deal to be “market tested.”  The competition authorities will make the settlement public and receive comments on whether it solves the problems or not.  I suppose it’s possible there may ultimately be stronger sanctions than currently appear to be the case in what’s been leaked or that the authorities will do more after the “market testing,” but frankly I doubt it.

Bottom line:  Google has had its wings clipped a little bit.  Google will be legally bound to follow labeling rules in Europe for five years and have a third-party enforcer to ensure that happens.  It also means that European search results will look different than in the U.S. unless Google decides to take the same approach here or someone forces the company to do so.  That could happen.  Several state attorneys general led by the Texas attorney general have an open antitrust probe.  I’d hope that they would settle for nothing less than what the Europeans got.

And further down the road?  Fairsearch Europe has recently filed another antitrust complaint with the EU accusing Google of using Android software “as a deceptive way to build advantages for key Google apps in 70 percent of the smartphones shipped today.” Now that mobile is becoming more important than the wired Internet, Google is flexing its muscles there. The more things change, the more they stay the same…

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Companies Press European Antitrust Regulators To Act Against Google Fri, 22 Mar 2013 00:02:44 +0000 Eleven Internet Companies are pressing European antitrust regulators to take strong action against Google so that the Internet giant’s smaller rivals aren’t hurt. And what happens across the pond in this case could have an impact on possible antitrust action in the United States.

The companies, organized by the British shopping comparison website Foundem, sent a letter to European competition commissioner, Joaquin Almunia saying that they  “are becoming increasingly concerned that effective and future-proof remedies might not emerge through settlement discussions alone.”  They want a formal complaint to be filed. That has a way of focusing settlement talks.

The EU opened its antitrust probe of Google more than two years ago.  The regulators have been negotiating a possible settlement with Google and in January the company proposed steps it would be willing to take to respond the regulators’ concerns.

Supposedly Almunia and his staff are evaluating the settlement proposals.  If they think they go far enough they would be made public and “market tested” before the settlement was finalized.  The companies doubt Google will offer a serious remedy without a formal complaint.  They wrote:

“We will respectfully withhold judgement on Google’s proposed commitments until we have seen them, but Google’s past behavior suggests that it is unlikely to volunteer effective, future-proof remedies without being formally charged with infringement. Given this, and the fact that Google has exploited every delay to further entrench, extend, and escalate its anti-competitive activities, we urge the Commission to issue the Statement of Objections.”

The letter says that Google’s manipulation of search by promoting its own services while demoting the services of competitors hurt users by “degrading the user experience and limiting consumer choice, ” and “lay waste to entire classes of competitors in every sector where Google chooses to deploy them [search manipulation tactics].”

Our 2010 study, Traffic Report: How Google is Squeezing out Competitors and Muscling Into New Markets, demonstrated how with the launch of Universal Search, Google favored its own properties and services in search results to the detriment of its competitors.

Reuters, citing sources, says that Google “had offered to label its own services in search results to differentiate them from rival services, and also to impose fewer restrictions on advertisers” as part of a settlement with the EU.

That wouldn’t be enough for the 11 companies — or me for that matter.  They wrote:

“Google must be even-handed. It must hold all services, including its own, to exactly the same standards, using exactly the same crawling, indexing, ranking, display, and penalty algorithms.”

The EU investigation could have significant impact in the United States.  You’ll recall that after an 18-month antitrust investigation, the Federal Trade Commission gave Google a mere tap on the wrist. However, several states led by the Texas attorney general have an open antitrust investigation of Google. If the Europeans demand and get meaningful changes in Google’s behavior, the state attorneys general will almost certainly demand the same here.

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Europe’s Antitrust Chief Talks Tough On Google Fri, 11 Jan 2013 00:40:48 +0000 Google may have only received a tap on the wrist from the Federal Trade Commission when the agency closed the U.S. antitrust investigation without taking action against the Internet giant for skewing search results to favor its services, but it’s looking increasingly likely that Google will face strong action on the other side of the Atlantic.

The Financial Times reports that Google will have to change the way it presents search results or face antitrust charges for “diverting traffic.” Competition Commissioner Joaquin Almunia told the newspaper:

“We are still investigating, but my conviction is [Google] are diverting traffic. They are monetizing this kind of business, the strong position they have in the general search market and this is not only a dominant position, I think – I fear – there is an abuse of this dominant position.”

Almunia has told Google that it must make changes to address European concerns or that it will face a formal statement of objections.  Late last year he warned that Google would have to offer remedies this month.

I think you can take Almunia’s strong statements Thursday to The Financial Times as a sign that the European Commission is serious.  While he says he’d prefer a settlement, European law gives the antitrust enforcer a huge stick.  After filing a formal statement of objections, the Commission  can impose a fine amounting to 10 percent of Google’s revenue or about $4 billion. That’s almost as effective to getting executives attention as sending them to the slammer. Unlike the FTC, the European Commission doesn’t have to make its case in Court.  It can simply impose the fine.

As The Financial Times headline read on one story about the situation, “EU Antitrust Chief Holds All the Aces.” Almunia hinted that the antitrust settlement may play out differently in Europe because the law is different.  It’s also true that the Internet giant’s dominance in search is even greater in Europe at 90 percent of the market than the 70 percent share it commands in the United States.

And there is still a strong possibility of meaningful action in the United States.  Texas Attorney General Greg Abbott is actively pursing a case.  His staff has appropriately worked to obtain key Google documents that Google tried to claim were privileged and did not need to be turned over in response to Civil Investigative Demands. From all appearances the FTC staff was nowhere near as diligent in its investigation.

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Did The FTC Find Its Spine In Google Probe? We Need To Keep The Pressure On Thu, 20 Dec 2012 22:13:54 +0000 Last weekend news broke that the Federal Trade Commission was about to settle its two-year antitrust investigation of Google with what charitably could be termed a slight tap on the wrist. But by Tuesday night the reported holiday gift to the Internet giant was unraveling and the FTC signaled
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it would keep the investigation going into January.

So what’s behind the Commission’s new found spine? Is it real? Will it last?

First, let’s review what reportedly was on the table. The FTC wasn’t going to do anything meaningful about the way Google favors its own services in search. It was going to accept a non-binding note from the Internet giant essentially promising to play nice with others. Google would stop scrapping content from other sites and would make it easier to move ad campaigns from Google to other sites. There would be no binding consent agreement on the key issues. Supposedly Google would sign a consent agreement on the unrelated question of how it unfairly uses its “Standards Essential Patents” to thwart competitors.

But on the key anticompetitive issues that harm competitors and consumers Google once again would be saying, “Trust us, we’ll be nice.” Given its record of broken promises and violated consent agreements, why would anyone believe Google?

So when word of the expected settlement leaked, there was substantial pushback. Craig Timberg of The Washington Post explained it like this:

“Recent news reports detailing the terms of the tentative agreement unleashed a torrent of opposition from companies that had complained, state attorneys general who felt cut out of negotiations, interested lawmakers and consumer advocates. Many have long said that Google was manipulating search results to hobble competitors and gain advantage for its own offerings in shopping, travel services and other lucrative businesses — and in the process, limiting consumer choice.”

Consumer Watchdog has been pushing the FTC for meaningful action since the antitrust probe began. Last month we wrote a letter to the Commissioners urging them to file an antitrust suit and seek the breakup of the company and a spinoff of the Motorola Mobility subsidiary. With the reports that the FTC appeared to be caving, on Tuesday we wrote to Attorney General Eric Holder asking the Department of Justice to take over the ongoing federal antitrust probe of Google after the company’s chairman in a news interview equated it with antitrust poster child Microsoft in the 1990s.

The same day The Emperor of All Identities, an op-ed written by former FTC Commissioner Pamela Harbour Jones, appeared in The New York Times. She wrote:


But we need to look at Google’s market role — and behavior — through a different prism. Google is not just a “search engine company,” or an “online services company,” or a publisher, or an advertising platform. At its core, it’s a data collection company.
Its “market” is data by, from and about consumers — you, that is. And in that realm, its role is so dominant as to be overwhelming, and scary. Data is the engine of online markets and has become, indeed, a new asset class…
Now, the FTC. has another chance to protect consumers, promote innovation and ensure fair competition online. In making its decision, it must understand that while Google may be the runaway leader in Web search and online advertising, its most troubling dominance is in the marketplace of private consumer data. If real competition in this area can be restored, I am confident that market forces will provide the incentives necessary for companies to offer attractive services and relevant, engaging ads without violating consumer privacy.


Perhaps the FTC commissioners felt trapped in a pincer between state antitrust investigations and the probe underway by the European Commission. Texas, California, Ohio and New York have active investigations of the Internet giant. In fact Texas has sued Google to get documents it needs for the investigation. Google is stiffing the Texas AG. As Ed Wyatt and Clair Cain Miller reported in The New York Times, “State attorneys general, some of whom are undertaking their own Google investigation, were briefed on the potential agreement, and some were unhappy that they were not included in the talks and that the proposed punishment seemed light.”

Meanwhile, Politico’s Steve Friess and Elizabeth Wasserman noted that “European regulators appear headed toward a dramatically different conclusion to their antitrust probe of Google than their American counterparts — a binding agreement that could cost the search company dearly if violated. That’s one of several reasons why the expected Federal Trade Commission settlement that sources said was a done deal unraveled Tuesday.”

“At the FTC, people close to the agency said, commissioners grew irked that they were being portrayed as spineless, wrote Wyatt and Miller in The New York Times. “In a parallel investigation, European regulators were said to be wringing a more stringent agreement from Google.”

Well, maybe the commissioners are irked at being called spineless, but guess what? They were. I hope they are beginning to see the need — at a very minimum — for a binding consent decree that halts Google’s abuses. However, the best course would be to follow the FTC staff’s recommendation and file an antitrust suit. The fully developed public record that would result from a trial would ensure that effective remedies could be put in place. A negotiated settlement will inevitably invite cynicism about the results, and keep any documents obtained in the course of the investigation out of the public eye.

Meanwhile, the states attorneys general must keep their investigations open and aggressive in case the FTC falters again. We need to keep the pressure on; it would be a sad situation if we have to rely on the European Commission to solve our antitrust problems for us.

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Google Ruling Shows Need For Do Not Track And Strong Antitrust Action Tue, 20 Nov 2012 00:33:34 +0000 A federal judge’s ruling late Friday in a key privacy case demonstrates the need to implement tough “Do Not Track” rules and to take decisive action on the antitrust front against Google.

Judge Susan Illston approved the Federal Trade Commission’s $22.5 million settlement with the Internet giant for hacking past privacy settings on Apple’s Safari browser in U.S. District Court in San Francisco, in a deal that Consumer Watchdog had argued was insufficient in light of Google’s wanton privacy violations.

“The Court also grants additional deference where the decree has been negotiated by a governmental agency that is an expert in its field,” Judge Illston said in her decision.

I was disappointed with the ruling, but think we made important points that will affect how similar cases are dealt with in the future. Drawing the public’s attention to this case was tremendously important. I’m glad we did it.

Attorney Gary Reback of Carr & Ferrell represented us as an amicus curiae or friend of the court. Frankly, I expected an uphill battle with

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Google and the FTC aligned against us. Together the government and Google defended the deal that had been negotiated in secret.

Judge Illston did not surprise when she began the hearing by saying her “preliminary view” was to approve the settlement. We opposed the deal for three basic reasons:

1. The settlement allows Google to deny that it did anything wrong.

2. The $22.5 million fine — a lot for you and me — is insufficient for a company like Google with revenue of $40 billion a year. Really it’s just chump change. Google makes $22.5 million in about five hours. Google was liable for fines totaling $16,0000 per day per violation. If you consider each wrongly placed cookie a violation — and you should — Google quickly reaches a liability in the billions. A fine of that magnitude would have caught Google executives’ attention.

3. The injunctive relief in the settlement is insufficient. Google is allowed to keep the ill-gotten data it obtained by hacking around the Safari privacy settings, which is the browser used on iPhones and iPads.

Reback made the arguments in two excellent briefs before the hearing. Both are well worth reviewing. The first is particularly valuable for the way it lays out Google’s history of privacy invasions. Read the original amicus brief here and our response brief here.

As the hearing began Judge Illston said there was no need to require Google to admit it did anything wrong. She said she had no problem with the amount of the fine. She did, however, have questions questions about allowing the Internet giant to retain the wrongfully acquired data.

The government and Google’s attorneys tried to make the case that the Google wouldn’t use the information, so keeping it was irrelevant. I thought Reback effectively rebutted their position, but then, you’d expect me to think that.

By the end of the day, though, Judge Illston had ruled against us. As Reback told The Associated Press’ Mike Liedtke, after the hearing, a consent decree ‘‘is not a good way to police Google,”

What the decision does is allow Google executives to buy their way out of trouble with what for them is pocket change and then deny doing anything wrong. As our briefs made clear, Google has demonstrated an ability to out maneuver government regulators repeatedly and ride roughshod over the privacy rights of consumers. Google continues to be disingenuous about its practices.

That’s why the decision makes two things clear: First, if consumers are to have any privacy at all and be able to control what data is gathered about them, tough Do Not Track rules must be implemented. Second, as we told the FTC last week, the Commission needs to file an antitrust suit against Google and take it to trial in U.S. District Court. The FTC should seek to force Google to divest its Motorola Mobility subsidiary, separate search from advertising, and undergo the same sort of regulation as a public utility.

The Federal Trade Commission’s role in keeping Google’s abuses in check is essential. The Internet is too important to allow an unregulated monopolist to dominate it.

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Google Gets Antitrust Ultimatum From FTC Tue, 13 Nov 2012 00:02:34 +0000 Federal Trade Commission Chairman Jon Leibowitz has given Google what Bloomberg News Service describes as an ultimatum to settle the agency’s antitrust investigation in the next few days or face a lawsuit.

Citing unidentified sources, Bloomberg reporter Sara Forden wrote:

“Google has been in discussions with the agency for about two weeks and hasn’t put any remedy proposals on the table, said the people, who declined to be identified because the negotiations are private.”

FTC staff have been investigating whether the Google has been abusing its dominance of the Internet for more than a year.  The staff has reportedly recommended issuing a complaint focused on Google’s search practices and also for misusing its patents to block rivals smartphones.

The FTC has told Google it won’t accept a resolution short of a consent decree, Bloomberg’s Forden wrote,  and is prepared to take action in the next week or two.

Google is continuing its usual happy-face spin. “We continue to work cooperatively with the Federal Trade Commission and are happy to answer any questions they may have,” Google Spokesman Adam Kovacevich told Bloomberg.

At first blush the idea that the FTC is holding out for a consent decree may sound reassuring.  For what it’s worth though, I’m a little concerned that a settlement  might not do enough.

Chairman Leibowitz is expected to step down from the agency soon.  There is speculation that in a nod toward his legacy, he might be willing to agree to a less than adequate settlement, just to be able to say the FTC got the Internet giant on his watch.

Franky, there is a similar concern among privacy advocates that there could be a willingness to accept a weak Do Not Track standard for the same reason.

If the Commission files a lawsuit, the FTC could proceed in its own administrative court or in federal court.  No decision has been made about the venue.

Meanwhile there was a development over the summer that might give Google pause.  The Commission has changed its policy and can now seek “disgorgement” — forcing a firm to surrounded profits as an antitrust penalty.  If the FTC goes that route, it might really concentrate the minds of the geeks in Mountain View.

And don’t forget the other side of the Atlantic.  The EU is pressing Google to resolve its antitrust concerns or face a formal complaint.  That, too, could come in a matter of weeks.

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Google’s Dominance Sparks Fear, Draws Antitrust Concerns Mon, 05 Nov 2012 23:36:40 +0000 A weekend New York Times article puts a clear focus on the issues that are drawing antitrust regulators to focus on the Internet giant’s anticompetitive practices.

Written by Steve Lohr and Clair Cain Miller the article, Google Casts a Big Shadow on Smaller Web Sites, explains what’s going on:

Regulators in the United States and Europe are conducting sweeping inquiries of Google, the dominant Internet search and advertising company. Google rose by technological innovation and business acumen; in the United States, it has 67 percent of the search market and collects 75 percent of search ad dollars. Being big is no crime, but if a powerful company uses market muscle to stifle competition, that is an antitrust violation.

So the government is focusing on life in Google’s world for the sprawling economic ecosystem of Web sites that depend on their ranking in search results. What is it like to live this way, in a giant’s shadow? The experience of its inhabitants is nuanced and complex, a blend of admiration and fear.

The Federal Trade Commission staff has recommended bringing an antitrust action against Google. The Times calls the government’s antitrust “scrutiny of Google the most exhaustive investigation of a major corporation since the pursuit of Microsoft in the late 1990s.”

The Times points out that Google has drawn antitrust investigations as it has moved aggressively beyond search and advertising into areas like online commerce and local reviews. The problem is that Google uses its search engine to promote its own products and services, hurting competition and, more important in antitrust law, harming consumers.

Our 2010 study, Traffic Report: How Google is Squeezing out Competitors and Muscling Into New Markets, demonstrated how with the launch of Universal Search Google favored its own properties and services in search results to the detriment of its competitors. One stark example was the dramatic drop-off in traffic that occurred on Mapquest’s site after Google placed its Google Maps at the top of Universal Search.

The Times article outlines what happened to the shopping service Nextag

when Google manipulated its algorithm. Traffic referred from Google, where 60 percent had originated dropped by half. Nextag responded by doubling its paid search advertising on Google.

The Times article also relates the story of and how it was banished to the hinterlands of search results. The Times talked to Ron Kahlow, who runs the organization and reported:

Last year, Mr. Kahlow said, F.T.C. investigators asked him if he thought his site was a target of discrimination. No, he replied. But since then, he has watched Google promote its tools for finding where to vote and sample ballots, just like his site offers.

“At that time, I didn’t believe it was intentional, but I’m having second thoughts,” he says. “I’m sure they’re aware of the amount of money that’s being spent in politics and I’m sure they’d like to get their fingers in the pie.”

In another example of the Internet giant’s power the Times relates how two local news sites CaryCitizen and Berkeleyside were dropped from Google News with no explanation. The changes came as Google was building up its Google Plus Local service.

Google executives maintain that the changes to the “secret sauce” are all about serving the user and offering him or her what they want.

They’re making that argument because a benefit to the consumer can, under antitrust law, offset the damage done to a competitor. But we can’t let Google executives get away with that dodge; it’s not true.

Users of Google services are not customers — not consumers in the usual sense. We are Google’s product. Our activities across its services are tracked and the digital dossiers that have been amassed about us are used to sell advertising.

And now that Google is moving in to becoming a shopping site — see what happens when you type patio furniture into the search box, for example — the Internet giant is squeezing other comparison sites of the results page. It means Google can get a bigger cut and prices will be higher because of a lack of competition.

This is real harm to consumers; Google has crossed the “red line” that will inevitably draw the antitrust regulator’s ire.

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FTC Readies Antitrust Suit Against Google; Consumer Watchdog Called For Breakup Two Years Ago Mon, 15 Oct 2012 23:02:20 +0000 News broke over the weekend that Federal Trade Commission staff is calling for the Commission to bring an antitrust case against Google for abusing its dominance in search,
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an action Consumer Watchdog first called for more than two years ago.

Our original call was aimed at the U.S. Department of Justice Department. Both the DOJ and FTC have antitrust jurisdiction. Our letter asked for a broad antitrust action against Google seeking remedial action that could include breaking the Internet giant into separate companies.

“Such action could include breaking Google Inc. into multiple separate companies or regulating it as a public utility,” I wrote at the time. “Google exerts monopoly power over Internet searches, controlling 70 percent of the U.S. market. For most Americans – indeed, for most people in the world – Google is the gateway to the Internet. How it tweaks its proprietary search algorithms can ensure a business’s success or doom it to failure.”

Detailed reports on Friday from Reuters, Bloomberg and The New York Times quoted unidentified sources and said that a 100-page staff report urging antitrust action against the Internet giant was being circulated to the Commission. Four commissioners were reported to be in favor of antitrust action; one was said to be skeptical. A decision on how to proceed could come next month.

The FTC was reported also to be considering action around whether Google is exerting illegal monopoly power with its Android smartphone operating system. Also under investigation is whether it abused patents in an illegal anticompetitive way. The patents were acquired when Google bought Motorola Mobility.

The news stories late Friday were clearly the result of deliberate leaks, more than likely from the FTC. That’s a sign that the Commission is trying to ratchet up pressure on Google, perhaps in an effort to bring about a settlement, rather than taking the case to court. Already the FTC has hired an outside litigator and economist for a possible case, again perhaps as much to signal seriousness and push toward settlement.

On the other side of the Atlantic, the European Commission is in talks about a possible antitrust settlement with the Internet giant. EU Competition Commissioner Joaquin Almunia said last month that the negotiations are “not there yet.” He warned that if Google does not offer “effective solutions” to the complaints he “will be obliged to continue with our formal proceedings.”

Given Google’s track record in the way it has stiffed regulators and one-upped them on both sides of the Atlantic, I’d urge regulators to forget about early settlement talks and file a formal case. They’ll have more leverage to talk after it’s filed. As we said in April 2010, remedies could include:

– Breaking Google into different companies devoted to different lines of business. Search could be separated from advertising. Gmail and its new social networking service, Google+, could be spun off as a separate entity as could YouTube, a Google acquisition that should have been denied at the time of merger. Enterprise applications could be another separate business.

– Google’s importance as a gateway to cyberspace requires a maximum degree of openness and transparency with the potential for government regulation. Arguably Google’s monopoly position and importance to the Internet means that the company should be regarded as a public utility and regulated. Regulations could be designed to open up Google’s ad platform to enable other competitors to compete. Rules could be crafted to create greater transparency in the operation of Google’s ad platform to enable parties to negotiate more effectively – for example: by providing greater visibility into the maximum amount of the highest bid, how many search terms are shown per page, and how Google’s “quality score” is derived and applied. Little, if any, of this information is currently public and openness would contribute to consumer choice and options as well as foster competition.

– Forcing Google to disgorge its monopolistic gains through the imposition of financial penalties. The payment would have to be significant enough to impact Google’s future behavior. Perhaps the amount could be tied to paying back consumers for monetizing their private information and content without compensating them.

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Obama Ad Libs, Snubs Google In Acceptance Speech Sun, 09 Sep 2012 23:37:34 +0000 Consumer Watchdog has long been critical of the way Google has had easy access to the corridors of power in the Obama Administration. Now there is a clear sign that the Internet giant has lost its luster with the President.

Perhaps Google’s repeated privacy missteps and antitrust concerns have prompted the President to distance himself. The motive is not clear, but here’s what happened.

Acceptance speeches are tightly scripted and the nominee generally follows the prepared text as it rolls across the TelePrompTer. The text is given to the press before the speech is delivered to facilitate reporting and analysis. According to the text distributed to the media, President Obama was supposed to say:

“We believe that a little girl who’s offered an

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escape from poverty by a great teacher or a grant for college could become the founder of the next Google, or the scientist who cures cancer, or the President of the United States — and it’s in our power to give her that chance.”

Instead he said:

“We believe that a little girl who’s offered an escape from poverty by a great teacher or a grant for college could be the next Steve Jobs, or the scientist who cures cancer, or the President of the United States — and it’s in our power to give her that chance.”

Looks like President Obama understands that Google’s image is crumbling even if his speechwriters don’t.

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Google Antitrust Deal In Europe Would Impact U.S. Wed, 25 Jul 2012 23:49:45 +0000 Google — facing the possibility of a penalty of around $4 billion — is trying to cut a deal with European antitrust regulators that would settle the regulators’ objections without having to pay a fine.

It’s not certain that an agreement can be reached, but if one is, it will have a direct impact on the United States. Joaquin Almunia, EU competition commissioner, said that any concessions the Internet giant offers to resolve the EU’s antitrust concerns would be applied worldwide.

“We will look for worldwide solutions; it will not be very useful to get European-wide solutions,” he said.

One of the main complaints against Google is the way it unfairly favors its own properties ahead of competitors in search results. We documented that two years ago in our study, Traffic Report: How Google is Squeezing out Competitors and Muscling Into New Markets.

In May the Commission said it was concerned that Google was favoring its own services in search, copying material from websites of competitors without permission, shutting out advertising competition and placing restrictions on the portability of online search advertising campaigns from its platform AdWords to the platforms of competitors. Almunia told the company to offer changes or face a formal statement of objections with the risk of fines in the billions of dollars. In Europe antitrust penalties can be imposed before a court proceeding.

At the time I predicted that Google would not offer meaningful remedies. Despite my skepticism, the EU is saying that Google is apparently responding. The New York Times quoted Almunia from a news conference Wednesday:

“We were trying to clarify to them how these solutions should be established. They were exploring with us what kind of solutions we were asking for, and now we have enough clarifications so as to start the process of technical meetings.”

“They will try to solve it. And I have reasons to believe that they think it’s worth it.”

Funny how $4 billion concentrates the mind, isn’t it.

Reportedly, one of the things that moved the possibility of a settlement forward was that Google agreed that any concessions it makes on search will apply to all platforms including computers and mobile devices.

I’m sure the EU is acting in good faith. I have my doubts about Google. The real difficulty in accurately assessing the situation is the secrecy that surrounds the negotiations. We simply don’t know what Google has proposed and what the EU wants. When an antitrust case gets to this stage, it really all should be on the public record.

Here is what another critic said, as reported by The New York Times:

For years, Google has said it deserves the benefit of the doubt,” said Jonathan Zuck, president of the Association for Competitive Technology, an industry group heavily financed by Microsoft. “Unfortunately, they’ve played us for fools every time.”

Mr. Zuck praised the commission’s “persistent work,” but said an “effective remedy” required an admission by Google of wrongdoing. “Without that understanding on the part of Google, it will never implement the kind of fundamental changes to its business practices that are necessary to curb these abuses,” he said.

I agree.

Besides the the European antitrust investigation, the Internet giant faces antitrust investigations by the U.S. Federal Trade Commission and several states. Antitrust officials in Korea, India and Brazil are also looking into Google’s business practices. A European deal could well serve as a blueprint for settlements with other authorities. The FTC and the EU have been in close touch about their investigations.

One difference is that the FTC’s probe includes an investigation into whether Google has abused its dominance of the Android operating system. The EU is not looking into that, but Almunia held out the possibility that it might.

Interestingly, in the semi-boilerplate language found in Google’s just-filed Form 10-Q, is a clear indication that the Internet giant finally gets that it is under scrutiny:

We are subject to increased regulatory scrutiny that may negatively impact our business.
The growth of our company and our expansion into a variety of new fields implicate a variety of new regulatory issues, and we have experienced increased regulatory scrutiny as we have grown. In particular, we are cooperating with the regulatory authorities in the United States and abroad, including the U.S. Federal Trade Commission (FTC), the European Commission (EC), and several state attorneys

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general in investigations they are conducting with respect to our business and its impact on competition. Legislators and regulators, including those conducting investigations in the U.S. and Europe, may make legal and regulatory changes, or interpret and apply existing laws, in ways that make our products and services less useful to our users, require us to incur substantial costs, expose us to unanticipated civil or criminal liability, or cause us to change our business practices. These changes or increased costs could negatively impact our business and results of operations in material ways.

I hope the Europeans extract meaningful concessions, though I remain skeptical that will happen. Google has a history of stonewalling and foot-dragging. The best solution would be to break Google into different companies devoted to different lines of business.

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Google’s Motorola Deal OK’d, But Regulators Vow to Monitor Patents Wed, 15 Feb 2012 20:45:35 +0000 Regulators on both sides of the Atlantic have cleared Google’s $12.5 billion acquisition of Motorola Mobility, but are vowing to keep a close eye on the Internet giant’s behavior after the deal goes through.

What concerns both the European Commission and the U.S. Justice Department is how Google will use Motorola’s powerful mobile phone patent portfolio.

Motorola has 17,000 patents and 7,500 patent applications. Many observers think patents are what drove Google to make the purchase in the first place. Google’s rivals control a number of significant patents in the field.

“This merger decision should not and will not mean that we are not concerned by the possibility that, once Google is the owner of this portfolio, Google can abuse these patents, linking some patents with its Android devices. This is our worry,” EU Competition Commissioner Joaquin Almunia told reporters in Brussels, according to Reuters.”This is not enough to block the merger, but we will be vigilant.”

Justice also approved an Apple-Microsoft-RIM consortium’s purchase of patents owned by bankrupt Nortel Networks. During its review of the deals Justice concluded the transactions aren’t likely

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to lessen competition. The investigation centered on whether so-called standard essential patents (SEPs) that Motorola and Nortel had promised to license to the industry would remain available.

Here is Justice’s conclusion:

“During the course of the division’s investigation, several of the principal competitors, including Google, Apple and Microsoft, made commitments concerning their SEP licensing policies. The division’s concerns about the potential anticompetitive use of SEPs was lessened by the clear commitments by Apple and Microsoft to license SEPs on fair, reasonable and non-discriminatory terms, as well as their commitments not to seek injunctions in disputes involving SEPs. Google’s commitments were more ambiguous and do not provide the same direct confirmation of its SEP licensing policies.

“In light of the importance of this industry to consumers and the complex issues raised by the intersection of the intellectual property rights and antitrust law at issue here, as well as uncertainty as to the exercise of the acquired rights, the division continues to monitor the use of SEPs in the wireless device industry, particularly in the smartphone and computer tablet markets. The division will not hesitate to take appropriate enforcement action to stop any anticompetitive use of SEP rights.”

At least the regulators are vowing to watch closely. Simply asserting that their motto is “Don’t Be Evil,” won’t cut it. Google’s behavior will matter and the regulators are watching.

And, there still are major antitrust investigations on both sides of the Atlantic into whether Google’s monopolistic dominance of search is violating antitrust law. We’ve long held that it does and that regulators should consider breaking the company up.

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FTC Will Probe Google’s Search Update Sat, 14 Jan 2012 01:12:45 +0000 Google’s latest change to its search engine, dubbed “Search plus Your World” apparently has drawn the scrutiny of the Federal Trade Commission because of antitrust concerns, according to Bloomberg News.

I’d say the agency, already investigating the Internet giant’s business practices, was correct to add Google’s latest search changes to the list of its concerns.  As we’ve shown in the past, Google clearly favors its own properties in universal search results.  The latest change in search appears to be yet another way Google unfairly favors its own properties, in this case its new social network, Google+.

Bloomberg News Reporters Sara Forden and Brian Womack broke the latest news about the FTC Friday afternoon:

“The U.S. Federal Trade Commission is expanding its antitrust probe of Google Inc. (GOOG)the world’s most popular search engine, to include scrutiny of its new Google+ social networking service, according to two people familiar with the situation.

“The competition issues raised by Google+ go to the heart of the FTC’s investigation into whether the company is giving preference to its own services and whether that practice violates antitrust laws, said the people, who declined to be identified because the investigation isn’t public.”

In case you missed it, Google launched “Search, plus Your World” on Tuesday.  If you are logged into a Google account and enter a search, Google returns relevant results from content posted by you and your friends on Google+, the company’s new social network.  The Google+ data is interspersed into results from across the web.  You can click to opt out of this personalized search and see only the traditional results.  Another click displays only results from Google+.

Google Fellow Amit Singhal gave an example of how it works in a blog post announcing the new feature. He explained how as a boy his favorite fruit was something called the Chikoo.  A few years ago, he wrote, his family got a puppy and named it Chikoo. He has shared a number of photos of the dog with friends. Now with Search plus Your World, when Singhal enters the query “Chikoo” his results page returns both photos of the fruit and his dog.

Frankly, I’ve been trying to get my head around the implications of this new feature all week.   On the plus side, it only works if you log into a Google account.  On the negative side is the fact that once you do sign in, you get personalized search by default. You can opt out. The better choice would be to make the new feature opt-in.  You would have to turn  it on if you want it.

The antitrust issues arise because of the way Google treats the results from its own social network.  It searches the posts of your friends on Google+, but doesn’t do the same for Facebook or Twitter.
Some have suggested this in itself is anti-competitive.  It might well be if the other networks wanted their data searched. The fact of the matter is that neither Facebook nor Twitter allow Google access to “crawl” that data.  Twitter used to give Google access, but the deal fell apart over the summer.

Microsoft’s Bing does search Tweets and, according to All Things Digital,  may be paying $30 million for the rights. It does seem wrongheaded to argue that Google must search the content of other social networks when they won’t provide access.

But there still is a serious antitrust issue: When you enter a name into Google’s search bar, if the person is on Google+, their picture and a link to their profile is auto-suggested. Try it with Eric Schmidt or Britney Spears.  Click on it and you get the Google+ profile at the top of your results.
This happens whether you are logged into a Google account or not.  If you are logged in, Search plus Your World also seeks results from content inside the Google+ network.  Logged in or not, the auto-suggest feature suggests Google+ profiles when the name matches a Google+ user. Clearly the feature is designed to drive users to Google+.

Now while we can’t really expect Google to search posts on Facebook or Twitter when neither gives access to that content, we should insist that Goole give the same sort of treatment to the social network pages that are part of the public web.

Both Facebook and Twitter have pages that are analogous to Google profiles and are available on the public web. They don’t get the same preferential treatment as Google profiles.

As John Battelle points out in his Searchblog, Google used to claim its results were unbiased.  He quotes from the company’s original letter to shareholders in 2004, “Our search results are the best we know how to produce. They are unbiased and objective, and we do not accept payment for them or for inclusion or more frequent updating.”

It used to be that Google said they wanted users to get off their site and on to the site they were seeking as quickly as possible. Naturally there was a hope that they would frequently choose to click on an ad to get there.

Those days are long gone. Everything Google is doing now is attempt to keep you on its sites as long as possible so it can gather as much information about you as possible. Look at the menu bar that drops down to offer links to many Google properties and services when you go to Google’s recently redesigned homepage for a simple search.

And, it’s  quite clear that Google is favoring its own properties in search results. Google plus Your World is simply the latest example. That’s one of the reasons why the Internet giant is under well deserved scrutiny by the European Commission, the Federal Trade Commission and at least six states attorneys general for possible antitrust violations

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