Hot on the heels of Google’s Jan. 10, 2012 introduction of “Search, plus Your World,” integrating the Google+ social network into Google’s search results, EPIC (Electronic Privacy Information Center) has asked the Federal Trade Commission to review Google’s changes, asserting in a Jan. 12, 2012 letter to the FTC that “Google’s business practices raise concerns related to both competition and the implementation of the Commission’s [2011] consent order.”  Google’s modified search service, EPIC explained in its letter, will 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.

In EPIC’s view, these changes “implicate concerns over whether the company prioritizes its own content when returning search results” and raise privacy concerns because

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.  [Footnotes omitted.]

In a Jan. 10, 2012 Tweet, Twitter General Counsel Alex Macgillivray, who formerly served as Deputy General Counsel for Products and IP at Google, criticized Google’s move, calling it a “[b]ad day for the Internet.  . . .  Having been there, I can imagine the dissension @Google to search being warped this way.”  According to AllThingsD, Twitter released the following statement on Jan. 10:

For years, people have relied on Google to deliver the most relevant results anytime they wanted to find something on the Internet.

Often, they want to know more about world events and breaking news. Twitter has emerged as a vital source of this real-time information, with more than 100 million users sending 250 million Tweets every day on virtually every topic. As we’ve seen time and time again, news breaks first on Twitter; as a result, Twitter accounts and Tweets are often the most relevant results.

We’re concerned that as a result of Google’s changes, finding this information will be much harder for everyone. We think that’s bad for people, publishers, news organizations and Twitter users.

Google responded to Twitter’s criticism later that day:

We are a bit surprised by Twitter’s comments about Search plus Your World, because they chose not to renew their agreement with us last summer (http://goo.gl/chKwi), and since then we have observed their rel=nofollow instructions.

AllThingsD’s Liz Gannes added that when she sought clarification from Google, she “was told Twitter instructed Google to ignore the fact that links to Web pages are included in tweets, and that their inclusion shouldn’t influence the search ranking of those Web pages.”

EPIC’s focus on both competition and privacy concerns echoes the probes previously launched by the FTC into Google’s business activities.

• In a June 24, 2011 post on the Official Google Blog, Google Fellow Amit Singhal acknowledged that “Yesterday, we received formal notification from the U.S. Federal Trade Commission that it has begun a review of our business.  . . .  It’s still unclear exactly what the FTC’s concerns are . . . .”  At the time, The Wall Street Journal characterized the inquiry as “a broad, formal investigation into whether the Internet giant has abused its dominance in Web-search advertising.”^{[Footnote 1]}
• On the privacy front, Google’s 2011 settlement of the FTC’s investigation into Google’s earlier social network service, Google Buzz, requires the company to implement a comprehensive privacy program and undergo biennial privacy audits for the next 20 years.^{[Footnote 2]}  The FTC’s privacy investigation followed complaints from a number of quarters, included a formal complaint EPIC filed on Feb. 16, 2010.

Last Friday, Bloomberg reported that according to unnamed sources, the FTC will expand its current antitrust investigation of Google to include “Search, plus Your World.”  Whether this proves to be the case (and, if so, whether the probe will address both competition and privacy issues) remains to be seen.

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Footnotes
1 [Back to Post] Google was also the focus of a Sept. 21, 2011 hearing before the Senate Judiciary Committee, Subcommittee on Antitrust, Competition Policy and Consumer Rights, styled as “The Power of Google: Serving Consumers or Threatening Competition?”  In his prepared statement, Google Executive Chairman Eric Schmidt addressed the FTC investigation:

In June of this year, Google received Civil Investigative Demands from the Federal Trade Commission regarding certain aspects of our business practices. While no company would request such a government investigation, we are confident that our business practices will stand up to scrutiny.

We are fully cooperating with the FTC’s investigation, and we hope that it will be conducted in a focused and fair manner so that we can continue creating jobs and building products that delight our users.

We know that several companies have complaints with Google, which they may have raised with government regulators here and abroad. In our experience, most of these complaints come from websites that don’t like where their sites rank on Google’s search results page or argue that in providing better answers like maps, shopping, or local results, we are hurting individual sites.

When you hear these complaints, I’d urge you to keep two things in mind.

First, we built search for users, not websites, and no matter what we do, there will always be some websites unhappy with where they rank. Search is subjective, and there’s no “correct” set of search results. Our scientific process is designed to provide the answers that consumers will find most useful.

Second, unlike technologies of the past, the great thing about the fundamental openness of the Internet is that, if consumers don’t like what one website is providing them, they can switch to another website with just one click. Using Google is a choice (and a free one), and there are no barriers to consumers navigating to www.kayak.com, www.nextag.com, www.bing.com, www.yelp.com, www.expedia.com, or any other website.

I am not a lawyer, but I take comfort from the fact that every decided antitrust suit that has been brought against Google regarding our search results has been dismissed. As recently as last month, an Ohio state court dismissed a private antitrust suit brought against Google. I believe that this demonstrates that our business principles and, in particular, Google’s focus on putting consumers first, are also the same values that are behind the antitrust laws.

That does not mean that we do everything perfectly. The fact that we made over 500 changes to the algorithm last year is an indication that we are constantly refining the way that we organize and display information. And, like any good business, we are always happy to hear criticisms and concerns from consumers so that we can continue to improve.

A written record of the Sept. 21, 2011 hearing (documents and transcripts) is available here, and a C-SPAN video is available here. 

In a Dec. 19, 2011 letter to FTC Chairman Jonathan D. Leibowitz, Senators Herb Kohl (D-Wis.) and Mike Lee (R-Utah), chairman and ranking member of the subcommittee, respectively, called on the Commission to investigate claims that Google’s search results favor the company’s own products and services:

On September 21, 2011, we held an Antitrust Subcommittee hearing to examine allegations that Google’s search engine is biased in favor of its own secondary products and services, undermining free and fair competition among e-commerce websites. While we take no position on the ultimate legality of Google’s practices under the antitrust laws and the FTC Act, we believe these concerns warrant a thorough investigation by the FTC.  . . .

. . .

. . .  We therefore urge the FTC to investigate the issues raised at our Subcommittee hearing to determine whether Google’s actions violate antitrust law or substantially harm consumers or competition . . . .

And in a Bloomberg Television interview in late December 2011, noted Silicon Valley antitrust lawyer Gary Reback discussed Google’s alleged “preferencing” its own content, observing: “In the time since the deal [Google's acquisition of flight search software maker ITA Software] was cleared [by the Department of Justice in April 2011], the Federal Trade Commission has taken over the Google investigation and the FTC is investigating a lot of examples of Google preferencing, not just in travel, but in things like comparison shopping and local search and finance . . . .”

2 [Back to Post] In a March 30, 2011 press release, the FTC announced that Google had agreed to settle FTC charges regarding the Google Buzz social network, noting that the proposed settlement

bars the company from future privacy misrepresentations, requires it to implement a comprehensive privacy program, and calls for regular, independent privacy audits for the next 20 years. This is the first time an FTC settlement order has required a company to implement a comprehensive privacy program to protect the privacy of consumers’ information. In addition, this is the first time the FTC has alleged violations of the substantive privacy requirements of the U.S.-EU Safe Harbor Framework, which provides a method for U.S. companies to transfer personal data lawfully from the European Union to the United States.

The FTC also released a draft complaint in connection with its announcement of the proposed settlement.  Notice of the proposed consent agreement was published in the Federal Register on Apr. 5, 2011; public comments are available here.  The FTC announced its final approval of the settlement on Oct. 24, 2011 and released its Oct. 13, 2011 Decision and Order and Oct. 13, 2011 complaint.  Among the main points of the settlement:

• Google is prohibited from misrepresenting (1) the extent to which it maintains and protects certain user information, including the purposes for which it collects and uses that information and the extent to which a consumer may exercise control over the collection, use or disclosure of that information, and (2) the extent to which Google complies with or otherwise participates in any privacy, security or compliance program including the U.S.-EU Safe Harbor Framework.
• Google must obtain “express affirmative consent” from a Google user before Google undertakes any new or additional sharing of certain user information with third parties that is (1) a change from stated sharing practices in effect at the time the information was collected and (2) results from any change, addition, or enhancement to a product or service.
• Google must establish, implement and maintain a “comprehensive privacy program” that is reasonably designed to  (1) address privacy risks related to the development and management of new and existing products and services for consumers and (2) protect the privacy and confidentiality of certain user information.
• Google must obtain independent assessments and reports on its privacy controls every two years for the next 20 years.

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