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In re: Google Search Plus

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  • Gallup Poll: Americans Divided on Regulation for Big Tech Firms: A new Gallup poll found that 48 percent of respondents said the government should boost its regulation of technology companies like Amazon, Facebook and Google, while 40 percent said regulation of these firms shouldn't change. Roughly 60 percent of self-identified liberals, union members, college graduates and Democrats support increased oversight of tech companies. EPIC maintains an extensive page on Privacy and Public Opinion which shows consistent support among Americans for stronger laws to protect their privacy. EPIC has also opposed mergers that threaten consumer privacy, including Facebook's acquisition of WhatsApp, Google's acquisition of DoubleClick, and Google's acquisition of Nest Labs. (Aug. 22, 2019)
  • FTC Opens Antitrust Investigation of Facebook: Facebook has disclosed that the Federal Trade Commission opened an antitrust investigation into the company. In a recent statement for a Senate Judiciary committee hearing on antitrust, EPIC wrote that "companies that protect user privacy are being absorbed by companies that do not protect privacy." EPIC pointed to the Facebook-WhatsApp deal and the failure of the FTC to protect the personal data of WhatsApp users after the merger. EPIC previously testified before the Senate Judiciary Committee about mergers in the online advertising industry after EPIC told the FTC that Google's acquisition of DoubleClick would diminish privacy and stifle innovation. EPIC earlier opposed Doubleclick's acquisition of Abacus, explaining that the deal would lead to increased profiling of American consumers. This year, EPIC, Color of Change, the Open Markets Institute, and others urged the FTC to spin off WhatsApp as a remedy for violations of the 2011 consent order. In a settlement announced this week, the Commission failed to do so. (Jul. 25, 2019)
  • EPIC Urges Antitrust Agencies to Raise their Game: In a statement to the Senate Judiciary committee, EPIC urged lawmakers to press the FTC and the Department of Justice on Enforcement of the Antitrust Laws. EPIC wrote that "companies that protect user privacy are being absorbed by companies that do not protect privacy." EPIC pointed to the Facebook-WhatsApp deal and the failure of the FTC to protect the personal data of WhatsApp users after the merger. EPIC previously testified before the Senate Judiciary Committee about mergers in the online advertising industry after EPIC told the FTC that Google's acquisition of DoubleClick would diminish privacy and stifle innovation. EPIC earlier opposed Doubleclick's acquisition of Abacus, explaining that the deal would lead to increased profiling of American consumers. EPIC, Color of Change, the Open Markets Institute, and others have also urged the FTC to require Facebook to spin-off WhatsApp and Instagram. (Jul. 18, 2019)
  • Tim Wu Testifies Before House Antitrust Committee: Former EPIC Advisory Board member Tim Wu will testify this week before a House committee regarding online platforms and market power. EPIC previously told the Subcommittee on Antitrust that "the internet advertising system today is not healthy. Two companies dominate the market. The privacy of Internet users is under assault. The revenue model that sustained journalism is broken. The current model is not sustainable. Privacy rules can help level the playing field." In 2000, EPIC opposed Doubleclick's acquisition of Abacus. In 2007, EPIC told the FTC that Google's proposed acquisition of DoubleClick would lead to consumers being tracked and profiled by advertisers across the web. (Jul. 15, 2019)
  • EPIC to House Committee: The Internet Advertising System is Not Healthy: EPIC has submitted a statement to the House Judiciary Committee regarding today's hearing on "Online Platforms and Market Power, Part 1: The Free and Diverse Press." EPIC told the Committee "The internet advertising system today is not healthy. Two companies dominate the market. The privacy of Internet users is under assault. The revenue model that sustained journalism is broken. The current model is not sustainable. Privacy rules can help level the playing field." In 2000, EPIC opposed Doubleclick's acquisition of Abacus. In 2007, EPIC told the FTC that Google's proposed acquisition of DoubleClick would lead to consumers being tracked and profiled by advertisers across the web. (Jun. 11, 2019)

Background

Google

Google is a company created by Larry Page and Sergey Brin in 1998. Originally, Google was a search engine service, but since its inception, the company has expanded to create several web applications that encourage sharing of information. These applications include Gmail, Google Calendar, Google+, and Google Docs.

Google Search Plus

On January 10, 2012, Google announced that it would include personal data gathered from Google+ in the results of users' searches, including photos, posts, and business pages of users and their contacts. In addition to the personal information of a user’s contacts, search will also display Google+ business pages and notable Google+ users on the right-hand column of the results page.

Experts have noted that Google’s changes implicate concerns over whether the company prioritizes its own content when returning search results. Incorporating results from Google+ into ordinary search results allows Google to promote its own social network by leveraging its dominance in the search engine market. Search Engine Land’s Danny Sullivan wrote that Google’s changes favor Google+ “even more than [he initially] thought,” by “turn[ing] Google+ into an essential social network for any search marketer.” For example, the right-hand display of notable business and Google+ users replaces highly-visible advertising space, even for consumers who have no Google+ accounts and are not logged in to Google.

Benjamin Edelman, professor at the Harvard Business School, wrote that “Google is favoring its own ancillary services even when other destinations are objectively superior, and Google is using its dominance in search to compel users to accept Google’s other offerings.” He concluded by saying that “Google’s dominant position in search requires that the company hold itself to a higher level of conduct, including avoiding tying its other products to its dominant search service. Google has repeatedly crossed the line, and antitrust enforcement action is required to put a stop to these practices.”

Furthermore, although data from a user’s Google+ contacts is not displayed publicly, Google’s changes make the personal data of users more accessible. Users might, for example, “com[e] across an unexpected photo or post from a friend, [and] might reshare it to the world” or “[t]hings that people may have forgotten sharing with others will begin to show up serendipitously through ordinary Google searches.” James Grimmelmann, an associate professor at New York Law School, said that Google’s change “breaks down a very clear conceptual divide between things that are private and things that are public online.” Google allows users to opt out of receiving search results that include personal data, but users cannot opt out of having their information found by their Google+ contacts through Google search. In contrast, Google allows content owners to remove pages from Google’s public search results.

EPIC's FTC Complaint

EPIC’s letter to the FTC highlights several aspects of the Google Search Plus service that implicate the implementation of the FTC's consent order as well as concerns over whether the company prioritizes its own content when returning search results.

EPIC’s letter begins by detailing Google's history with the FTC, particularly in regards to Google Buzz and Youtube (a Google owned web video company) search results. EPIC’s 2010 complaint concerning Google Buzz, filed with the support of other privacy and civil liberties groups, provided the basis for the Commission’s investigation and October 24, 2011 subsequent settlement concerning the social networking service. In that case, the Commission found that Google “used deceptive tactics and violated its own privacy promises to consumers when it launched [Buzz].” The settlement prohibits the company from future privacy misrepresentations and requires it to obtain the affirmative consent of users prior to “new or additional sharing” of personal information with any third party. The settlement also requires Google to implement a comprehensive privacy program and calls for biennial, independent privacy audits for the next 20 years.

EPIC also cited its own experience with Google's search algorithm. In September of 2011, EPIC asked the FTC to investigate Google’s use of its search engine criteria to give preferential treatment to its own YouTube videos on “privacy.” EPIC explained that following Google’s acquisition of YouTube, Google revised the YouTube search criteria such that Google’s subjective “relevance” rankings became the default for returning search results. As a consequence, Google's own online videos on “privacy” are more likely to be ranked highly, and therefore viewed by internet users, than if the original search criteria had remained as the default. EPIC, which also makes videos concerning “privacy” available through YouTube, noted that it was specifically disadvantaged by Google’s preference for its own content. Google’s recent changes to its search results raise similar competitive issues.

The letter goes on to describe the anti-competitive aspects of Google's changes in business practices. EPIC argues that "[i]ncorporating results from Google+ into ordinary search results allows Google to promote its own social network by leveraging its dominance in the search engine market." Antitrust experts, such as Benjamin Edelman of the Harvard Business School, have also stated that "Google has repeatedly crossed the line, and antitrust enforcement action is required to put a stop to these practices." Edelman notes that "the top-most result [of a Google search] enjoys 34%+ of all clicks -- so when Google takes that position for itself, there's far less for everyone else."

Finally, the letter notes that "although data from a user’s Google+ contacts is not displayed publicly, Google’s changes make the personal data of users more accessible. . . . Google allows users to opt out of receiving search results that include personal data, but users cannot opt out of having their information found by their Google+ contacts through Google search. In contrast, Google allows content owners to remove pages from Google’s public search results."

FTC Authority to Act

The FTC's primary enforcement authority with regards to privacy is derived from 15 U.S.C. ยง 45, commonly known as section 5 of the Federal Trade Commission Act (FTCA). Section 5 of the FTCA allows the FTC to investigate "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce." This law provides a legal basis for the FTC to regulate business activities that threaten consumer privacy.

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