Has the Federal Trade Commission (FTC) been seduced by Google’s famous promise to “do no evil”? That’s the question a lot of critics are asking in the wake of the Internet search giant’s antitrust settlement with the FTC last week. The problem, critics say, isn’t simply that Google got off lightly; it’s that the FTC allowed Google to set the terms — both in defining whether the company’s behavior was harmful and in setting the terms of its punishment.
“For critics of Google,” NYU Information Law Institute fellow Nathan Newman writes on the Huffington Post, “the FTC decision is not bad news because we disagree with the results, but bad news because it reflects an enforcement agency failing to even ask the right questions.”
One of the central questions in the FTC’s antitrust investigation was how exactly to determine whether Google’s dominance in the search-engine business has caused harm — and to whom. Critics suggest that the FTC basically punted on this question, allowing Google to frame the terms of the question in a way that made it look good. As Edward Wyatt notes in the New York Times:
Instead of considering harm to people who come to Google to search for information, Google’s competitors and their supporters say that the government should have been looking at whether Google’s actions harmed its real customers — the companies that pay billions of dollars each year to advertise on Google’s site.
There’s no question that Google skews its search results to benefit companies and services it has a stake in, or that have paid money for the privilege. If you type a location into Google, for example, your first result will be Google Maps. There’s a certain convenience to this, but there is a downside as well: by boosting its own map service, Google has given itself a giant leg up over competitors like MapQuest — remember them?
While in the short term consumers benefit from the convenience of getting an instant map in their search results, there could be harm in the long term if Google is able to use its dominance in the search-engine world to wipe out competitors in other areas. When a company doesn’t have competitors, after all, there’s much less incentive to innovate — and consumers as well as Google’s competitors could suffer. That’s why we have antitrust laws in the first place.
But the FTC not only bought the argument that “Google likely benefited consumers by prominently displaying its vertical content on its search results page,” it also bought the argument that this was the correct way to weigh whether or not harm is being done.
Along with faulting the FTC for the way it dealt with (or, rather, didn’t deal with) the issue of “search bias,” critics are also charging regulators with putting far too much faith in Google’s willingness to fairly regulate itself.
Much like Microsoft before it, Joel West of Claremont Colleges writes on Seeking Alpha, Google has pushed “for self-regulation of the ‘trust us’ variety.” And that’s essentially what it got from the government, which basically took Google’s word that it would allow companies like Yelp the ability to block Google’s use of their data, and that it would lift restrictions on ad data.
As West notes, “Google’s mantra of ‘do no evil’ seems to have convinced many that it’s fundamentally trustworthy.” Of course, West points out, “anyone who knows Google knows that it is no more ‘pure of heart’ than Microsoft was in the 1990s or IBM in the 1970s.”
On Gizmodo, longtime Google critic Scott Cleland is even more scathing, offering a laundry list of complaints that have convinced him that Google can’t be trusted:
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? …
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?
While the FTC has closed its case, these issues aren’t going to go away anytime soon. The E.U. is still weighing a case against Google, and, in the U.S., some state attorneys general have also been talking about taking action. We’ll have to see if the critics find a more receptive audience with them than they did at the FTC.