Google Is Not Above the Law

The latest legal theory Google appears to be advancing in defense of serious questions about its anticompetitive business practices is simply that the company is above the law.

At least, that appears to be the aim of Google’s recent effort to sponsor (i.e. pay for) a campaign of misdirection to change the subject away from its business practices that deprive consumers of choice and choke off potential competitors’ ability to innovate.

While we can expect more and more voices sponsored by Google to weigh in, the company’s allies have been generally advancing the following arguments:  1) the First Amendment of the U.S. Constitution protects Google’s ability to bias search results in favor of its own products and services; and 2) no government agency can effectively enforce antitrust and competition laws against Google.

By advancing these specious arguments, Google at least finally admits that it does in fact bias search results, which is contrary to Eric Schmidt’s testimony before the U.S. Senate last fall.

The second argument is the most common defense offered by any company under scrutiny from competition authorities:  “the law is not as clever as we are.”  The latest in this string comes in the form of a Google-sponsored paper by Marvin Ammori and Luke Pelican, who examine some of the remedies that they claim Google’s critics have proposed.

In their outline of potential remedies, the authors argue that they are not viable since “A Court Could Not Adequately Supervise This Remedy” or “A Court Could Not Explain This Remedy.” In short, they never dispute that Google’s anticompetitive practices pose a problem, yet deny that if authorities find Google has violated the law that there is anything they can do to restore competition legally.

Google’s anticompetitive behavior, they allege, is too complicated for law enforcement officials in the U.S. and EU to devise adequate remedies to restore competitive markets to general and specialized search. Ammori, Pelican and Google seem to believe that law enforcement officials should permit illegal behavior because, in Google’s eye, it would be too challenging to devise workable, enforceable remedies.

Obviously, FairSearch disagrees with Ammori’s sponsored paper in 2012. Instead, we agree with the Marvin Ammori of 2010 in a paper for Free Press: “Government oversight, antitrust law and competition policy exist to ensure a fair marketplace for all business interests to the benefit of consumers and the economy.” Two months later Ammori expanded on the necessity of government oversight, in an op-ed in The New York Times, saying “[t]oday, the Internet is the basic infrastructure of both commerce and communication…Discrimination on the Internet will undermine innovation on an evolving Web…If the government cannot preserve the Internet as a level playing field, it is because our political system is already a pay-for-privilege system.”

FairSearch believes that to ensure a level playing field, and a well-functioning and fair marketplace, where consumers pick winners and losers in the market, Google must be forced to end its anticompetitive behavior immediately, including:

• Google’s discrimination against websites that threaten to disrupt Google’s dominant position.  Google should treat its own products as any others and rank them according to the results of an impartial algorithm.
• Google leverages its monopoly power to take proprietary content from other sites to further enhance its own business.  Google must be prohibited from threatening to exclude other sites entirely from its algorithmic search results, as it has done with TripAdvisor and Yelp, if they do not permit Google to use their proprietary content.
• Google’s manipulation of quality scores and other factors relating to Adwords that make it more expensive or difficult for others to compete with Google’s own products and services.
• Google’s imposition of exclusivity, for example in its contracts with advertisers, Android manufacturers or carriers, and sites whose search is powered by Google.
• Google’s predatory practices excluding platform competition in the mobile space and its use of its control over the Android operating system to exclude the use of competing mobile products and services.

The above list is by no means exhaustive and it is important to note that in addition to restoring competition on Google’s platform by ending search manipulation, it is also critical to restore competition between platforms.

Google must be forced to end its anticompetitive practices, and not allowed to benefit from its illegally obtained scale and revenue per search advantages, or to use those advantages to deny other general and specialized search engines from obtaining the scale necessary to compete viably.

No company is above the law, no matter how successful or how much power it has amassed to threaten authorities’ ability to enforce existing laws to protect the future of an open and competitive Internet.