In re: Google Search Plus

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  • EPIC Challenges Google Cookie Tracking Settlement as Unfair to Class Members: EPIC filed an amicus with a federal appeals court urging the court to reject a proposed class action settlement in a consumer privacy case. The case involved Google tracking internet users in violation of the users' privacy settings. EPIC said the settlement resulted in no change in business practices and wrongly awarded cy pres funds to organizations that Google would otherwise support. The settlement was also opposed by the Attorneys General of thirteen states. EPIC, the Center for Digital Democracy, and US PIRG were the groups that warned the FTC in 2007 that the Google-DoubleClick merger would lead to the internet tracking practices at issue in the settlement. EPIC's 2010 FTC complaint regarding Google Buzz also led to the FTC's Consent Order with Google that enabled the Commission to pursue related charges against Google. EPIC has proposed an objective basis for courts to make determinations in consumer privacy cases that protect the interests of class members and avoid the risk of collusion between the parties in settlement. (Nov. 22, 2017)
  • In Merger Reviews, EPIC Advocates for Privacy, Algorithmic Transparency: EPIC has sent a statement to the Senate Judiciary Committee ahead of a hearing on the new Antitrust Chief. EPIC urged the Committee to consider the role of consumer privacy and data protection in merger reviews. EPIC warned that "monopoly platforms" are reducing competition, stifling innovation, and undermining privacy. EPIC pointed to the FTC's failure to block the Google/DoubleClick merger which accelerated Google's dominance of Internet advertising and the WhatsApp/Facebook merger which paved the way for Facebook to access confidential WhatsApp user data. EPIC also suggested that "algorithmic transparency" would become increasingly important for merger analysis. EPIC is a leading consumer privacy advocate and regularly submits complaints urging investigations and changes to unfair business practices. (May. 9, 2017)
  • Google "Quietly" Changes Privacy Policy, Matches Tracking Data and User ID: Ars Technica reported this week that Google "quietly" changed its privacy policy this summer to combine tracking data and user ID - data it had previously promised to keep separated. The revised policy now says that "your activity on other sites and apps may be associated with your personal information" for ad delivery. In 2007, EPIC urged the FTC to block Google's proposed acquisition of Doubleclick, warning that Google would eventually link the Google user profile with the Doubleclick data despite the company's representations. When the FTC approved the merger without conditions, EPIC responded that the FTC "had reason to act and authority to act, and failed to do so." Currently before the FTC is a complaint from EPIC concerning WhatsApp plan to transfer user data to Facebook, breaking a privacy promise made by the company at the time of the 2014 acquisition to act "independently and autonomously." (Oct. 25, 2016)
  • Senate Examines FTC's Antitrust Enforcement: The Senate Judiciary Committee recently examined the scope and application of the FTC's Section 5 antitrust enforcement authority at the hearing "Section 5 and 'Unfair Methods of Competition': Protecting Competition or Increasing Uncertainty?" EPIC Advisory Board member Tim Wu testified in support of the agency's approach, which he called "an important protection for competition." EPIC has urged the FTC to use Section 5 authority to protect consumers, arguing against Google's acquisition of DoubleClick and Facebook's acquisition of WhatsApp. EPIC has also recommended a transparent process for evaluation of substantial changes in business practices by companies subject to FTC consent orders. (Apr. 13, 2016)
  • EPIC Files Comments with FTC on Merger Review and Consumer Privacy: EPIC, along with 26 technical experts and legal scholars, has submitted extensive comments for the FTC's review of the merger remedy process. EPIC urged the Commission to consider the privacy risks to consumers that result from the merger of big data firms. The comments detailed EPIC's efforts, over 15 years, to warn the FTC about such mergers as Abacus and DoubleClick, then DoubleClick and Google, AOL and Time Warner, and most recently Facebook and WhatsApp. EPIC urged the FTC to asses both competitive and privacy impacts of merger, and to enforce privacy commitments prior to granting merger approval. (Mar. 18, 2015)

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. § 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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