You are here
Oversight Questions for FTC's Handling of Google Antitrust Probe -- Part 12 Google Unaccountability Series
Submitted by Scott Cleland on Fri, 2012-11-30 11:55
The number and seriousness of irregularities, deficiencies, and unanswered questions in the FTC's antitrust investigation of Google's alleged search bias warrant oversight by the Senate and House Antitrust Subcommittees and investigative reporting by the media.
- Why did the FTC not seek access to the thousands of potentially most relevant and incriminating Google emails and documents that the Texas Attorney General is seeking a Federal Court to compel Google to disclose?
- Why was it not in the interests of the FTC's Google investigation and the pursuit of justice, for the FTC to support the Texas Attorney General in Federal Court and oppose Google's sweeping assertion of attorney-client privilege for thousands of business emails and documents that involved no legal advice?
- How can the FTC conclude that there is not enough evidence to pursue a Google antitrust case when the FTC has not sought to examine the potentially best and most incriminating known evidence?
- If fair representation (deceptive practices enforcement) is central to the FTC's mission, why would the FTC not even consider enforcing anti-deception law against Google in the single biggest alleged misrepresentation case in the history of the FTC when: FTC prosecutors recommend it; the EU and the bi-partisan Senate Antitrust Subcommittee concluded search bias; the FTC, DOJ and EU have all concluded Google is dominant; and the FTC has found Google has already acted deceptively twice recently in the Google's Safari hack and Google Buzz? What's wrong with this picture?
- If the FTC has concluded Google to be dominant twice, why is the FTC apparently holding a known dominant firm to a much lower deceptive practices standard than the FTC has held non-dominant firms to? Doesn't dominance inherently suggest less competition and hence the need for more enforcement vigilance -- not less?
- Why does the FTC not think it is important for the dominant firm, which is literally at the epicenter of the online economy and able to pick winners and losers in virtually every segment of the online market, to not be an honest broker? Given the stakes for competition, the economy, and consumers why is the FTC erring on the side of not enforcing the law rather than attempting to enforce the law?
- Does the FTC honestly believe that the risk to consumers and competition is greater in bringing a case in court against one clearly dominant company to ensure all other companies and consumers in the online economy are treated fairly and not deceptively, than it is to not enforce the law to protect competition and consumers economy-wide?
- Why is the FTC as a prosecutor giving Google every benefit of the doubt when Google has one of the consistently worst law enforcement rap sheets among the Fortune 1000, and Google also has the single worst antitrust record over the last five years? Why is the FTC adopting the softest-line with Google when law enforcement generally adopts a hard line against known repeat offenders? Just last year, didn't the DOJ have to impose a $500m criminal forfeiture penalty on Google for knowingly promoting illegal importation of prescription drugs threatening the health and safety of Americans for several years and didn't the prosecuting U.S. Attorney publicly state that Google CEO "Larry Page knew what was going on?" From a prosecutor's standpoint why not let a court of law decide this case? Why protect Google from its day in court where it guilt or innocence can be determined by the facts and the courts?
- Why is there such a stark contrast between the antitrust vigilance of the DOJ and FTC concerning Google? (The DOJ prevented Google's attempt to extend its market power three times: in blocking the Google-Yahoo agreement; in twice opposing the Google Book Settlement; and in requiring a consent decree for Google-ITA. On the other hand, the FTC facilitated the extension of Google's market power three times in approving Google-DoubleClick without a consent decree; approving Google-AdMob without a consent decree despite FTC prosecutors' recommendation to block it; and concluding that self-dealing by a dominant firm is not anti-competitive.)
- Does this five-year established record of the DOJ being more capable than the FTC in enforcing antitrust law vis-a-vis Google in particular suggest any institutional weakness by the FTC in making prosecution judgments based on just the evidence and law, and not based on political pressure?
- If the FTC can't enforce antitrust law up to the standard of the DOJ, why, in the interests of justice, won't the FTC refer the Google case to the DOJ like the FTC did twenty years ago when the FTC proved institutionally incapable of reaching a satisfactory conclusion in the Microsoft case?
- When the FTC promised to be vigilant of any Google extension of market power when it approved Google-DoubleClick and approved Google-AdMob without consent decrees, why hasn't the FTC investigated of acted upon Google's leveraging of DoubleClick and Admob to extend its market power to mobile and video search from desktop search? Isn't the Clayton Act all about ensuring that companies do not acquire or extend their market power via acquisition? Was there anyone assigned to actually fulfill the FTC's representations that the FTC would be vigilant in monitoring the outcome of these decisions?
- Why did the FTC speed up its antirust decision concerning Google, and did that acceleration in any way harm the quality and quantity of evidence collection, preparation of a case, or the ability to prosecute?
- Do the personal timetables of FTC commissioners combined with the unpredictable confirmation process of replacing them, make the FTC an inherently unstable or dysfunctional institution when trying to prepare a big long term, high-profile, antitrust case, as was the case when the FTC needed to refer the Microsoft antitrust case to the DOJ after deadlocking 2-2?
- Does the continuity, stability of the DOJ prosecutorial decision process, which does not require confirmation of a certain number of officials to vote on a prosecution, make the DOJ a more reliable and less manipulatable law enforcement institution for once-in-a-decade highest-profile antitrust cases?
- What is the reason, other than taking turns, and potentially institutional turf and pride, that the FTC does not refer the case to the DOJ where it has the potential to prepare a case and decide to prosecute, free of political pressure and based on the evidence and the law?
- Does the FTC's political decision to drop the Google search bias case that FTC prosecutors recommended and a bipartisan Senate Subcommittee suggested, have any similarity to the FTC's political decision to take no enforcement action at all on Google StreetView's secret recording of millions of American homes' WiFi signals, when the FCC's investigation found that Google publicly misrepresented what they actually did and obstructed the FCC investigation?
- How does the FTC explain away as not actionable the substantial public evidence that indicates Google has consistently represented its search as objective and unbiased when a Google executive admitted publicly that it was Google policy to bias search to favor Google products because that's "only fair?"
- Has the FTC ever before rejected two FTC prosecutor recommendations to prosecute a company in a thirty month period like it has in the instance of Google (AdMob & Search Bias)? Where's the problem? With FTC staff? FTC management? FTC commissioners?
- Since the FTC does not agree with the EU on Google search bias, why and on what basis is the EU wrong?
- Since the FTC doesn't agree with the bipartisan Senate Antitrust Subcommittee letter's concerns, where did they go wrong? Why is the evidence they collected for the FTC not legally actionable?
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"
Part 11: "Why FTC Can't Responsibly End the Google Search Bias Antitrust Investigation"