Courts, not FTC, should decide on Google practices

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Sadly, a majority of FTC commissioners reportedly are unwilling to let a court decide whether or not Google has engaged in illegal deceptive practices, despite the public evidence Google has promised users "unbiased and objective" search results, when they routinely bias their own content over others'.
 
Why is a majority of FTC Commissioners politically protecting Google from prosecution and a court of law's determination of Google's guilt or innocence under due process, when they know that Google has not fully cooperated with the FTC's investigation?


The FTC commissioners know the Texas Attorney General is suing Google in Federal Court to gain access to thousands of the potentially most relevant and incriminating evidence in this search bias case, because Google is withholding the evidence based on a sweeping claim that Google business emails including a cc-ed lawyer enjoy attorney-client privilege despite no legal advice being involved. Why would a majority of FTC commissioners want to effectively close an investigation of Google search bias before learning the potentially most incriminating evidence?
 
Consider the extraordinarily high stakes involved in this case. Never before has the FTC investigated the business practices of a company that could adversely affect more American consumers and businesses, in a more fundamental way, more often, and in more business segments economy-wide, than Google. The scale, scope and reach of Google's market dominance are unprecedented. The Senate investigation estimated the issue affected 240 million Americans and $170 billion in U.S. ecommerce.
 
Commanding a dominant 70 percent share of U.S. searches per ComScore and 78 percent of U.S. search ad revenue per eMarketer, Google has the unique market power to determine what Americans find online, the value of Internet content, and which online businesses succeed or fail. Google executives have acknowledged Google's market power: Santiago de la Mora said: "search is critical. If you are not found the rest cannot follow;" and Amit Singhal said Google is "the biggest kingmaker on this earth."
 
Also consider Google's highly-conflicted, content-broker, business model. Google's paying clients are advertisers, supplying over 95 percent of its search-related revenues. Google brokers users' demand for content from websites, with advertisers and websites' demand for access to users. Though Google represents to the public that Google puts user interests first, users are not Google's customers; they are the product Google effectively sells to advertisers and websites. 
 
In sum, the FTC itself has already found Google dominant  twice, and Google's Chairman admitted under oath in the Senate that Google is in the "area" of being a monopolist in online search. So how would it make consumer protection sense to hold a dominant firm to a lower standard than non-dominant ones?
 
Lastly, with all the evidence and consensus of a serious problem of Google search bias, why would a majority of FTC commissioners want to deny those alleging consumer harm their day in court to seek justice based on all the evidence available? It is inappropriate for the FTC to politically assume the role of cop, prosecutor and judge, when a judge should be allowed to decide Google's guilt or innocence based on the law, due process and the facts. 
 
Cleland is president of Precursor LLC, a research consultancy serving Fortune 500 clients, some of which are Google competitors; and author of “Search & Destroy: Why You Can’t Trust Google Inc.” In the George H. W. Bush Administration, he served  as U.S. deputy coordinator for communications and information policy.
 

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