With the Federal Trade Commission’s antitrust probe of Google Inc. reportedly weeks away from concluding, legal and industry experts critical of the Internet giant described what they see as a possible enforcement tipping point at a forum in Washington today.
The FTC has been reviewing Google’s business practices since last year, looking at whether the Mountain View, Calif., company unfairly ranks search results to benefit its own businesses. Meanwhile, the European Commission, the European Union’s executive body, continues to investigate Google for potential antitrust violations. In a showing of the big guns, the FTC announced in April that it had tapped Beth Wilkinson, a former Justice Department litigator to lead its antitrust investigation of Google.
A panel of experts, including former FTC and Justice Department officials, spoke about Google’s unmatched dominance as a search engine and what that means for the marketplace at a discussion hosted by Google-critical industry group FairSearch.org in Washington, D.C.
Pamela Jones Harbour, a former FTC Commissioner and current partner at Fulbright & Jaworski LLP, said regulatory bodies around the world have taken a keen interest in the company in recent years.
“Over the past two years, especially the past two years, conduct has been increasingly under investigation around the world,” she said during the event, held at the Newseum in downtown Washington.
Harbour broke the increased supervision down with numbers: Google has faced eight infringement suits in the past two years, and it is battling invasion of privacy allegations on four continents. Google controls more than 79 percent of U.S. searches and up to 90 percent in Europe. She also recalled the dust up surrounding Google’s popular “Street View” service, which the FTC ultimately dropped.
Offering a dose of pragmatism, Nathan Newman, a research fellow at the New York University Information Law Institute, said data mining is an issue that goes far beyond the confines of Google Inc.
The swift changes and asymmetry that technology has brought to markets is a “deep problem,” he said, adding that reaching a settlement in the Google case poses a steep challenge.
Google’s proponents have said the company should be allowed to continue to innovate and create in what is an ever-changing technology market.
Jim O’Connell, a former Deputy Assistant Attorney General in the department’s Antitrust Division, said at Thursday’s forum that it will be important for the regulators probing Google’s business practices to coordinate how it handles any potential punishment.
“It’s all about enforcing antitrust laws so the market can decide who wins and who loses,” said O’Connell, now a partner at Covington & Burling LLP.
He said he is confident that the FTC and the European Commission are working hard to coordinate and complete their respective investigations.
Pat Lynch, the former Rhode Island Attorney General, also brought the discussion to state-level enforcement of potential violations by Google.
He said attorneys general around the country view the Internet as the new “main street.” Thirty-six state attorneys general wrote to Google CEO Larry Page earlier this year, expressing their concerns over Google’s privacy policies.
“Attorneys General want a free market,” Lynch, who is now a consultant to FairSearch.org, said. “They don’t want businesses dying on the vine.”
He said that while Google and others might try and sidestep the state-level enforcers, they will not be going away any time soon.
“I Google, you Google, we Google,” he said. “But [attorneys general] have to step in and say, ‘Is this playing field level?’ ”
Meanwhile, however, Google recently won a major lawsuit in Brazil, with the Sao Paolo court ruling Google is not a monopoly. The court found that the company is allowed to show search results in whatever manner it chooses. Though the case has no bearing on the American or European inquiries, it could bolster Google’s own defense strategy if litigation does indeed occur.
Clarification: Speakers Pamela Jones Harbour and Jim O’Connell of Covington & Burling LLP have ties to Google competitor Microsoft Corp. Harbour has been a consultant to Microsoft and Covington is legal counsel to Microsoft. This article should have noted the connections.