Public Opinion and Scalia's Supreme Court Writings Support FTC Case Against Google

With news emerging late last week that the Federal Trade Commission is preparing to move forward in voting out an antitrust case that would conclude that Google’s anti-competitive practices are illegal, it is important to note that public opinion and a key Supreme Court opinion on antitrust support such a case.

Politico reported today that the FTC case covers four areas, all of which are concerns that FairSearch has raised for a long time. Those areas are:

• Google’s scraping of other sites’ content, such as restaurant reviews, and then presenting them in Google services.
• Google restricting the portability of advertising data from Google ad products, such as AdWords, to other ad platforms.
• Google’s exclusive syndicated search contracts, such as a requirement that Google search be the default search engine on Apple devices.
• Google’s bias in presenting its own products and services in search results over competitors.

According to a Tarrance Group poll, commissioned by FairSearch, 78 percent of voters across the country indicate they support the current investigation by the FTC regarding allegations that Google has violated antitrust and consumer protection laws. Only 16 percent of voters oppose this investigation. Some other interesting findings from the poll:

• Forty-one percent of voters believe that Google does have a monopoly, while 48 percent believe that it does not have a monopoly. Communication of the facts that Google currently controls 79 percent of the online search market in the U.S. and 90 percent in Europe, and controls more than 95 percent of searches performed on mobile phones has a dramatic impact increasing views to 67 percent who are more likely to feel Google has a monopoly position.
• Seventy-six percent indicate they believe that Google should be required to be more transparent in revealing how it ranks websites and provide an explanation to businesses that are negatively impacted.
• When asked to think about laws that protect competition, 67 percent of voters favor enforcing existing antitrust laws to protect new and small businesses operating on the Internet from companies abusing a monopoly position to gain a competitive advantage.

It’s also important to consider, as conservative outlet Breitbart pointed out, that a conservative U.S. Supreme Court opinion would support an FTC decision to bring a case.

“Justice Scalia’s dissent in the Eastman Kodak v. Image Technical Services case is seen by conservative critics of Google as an indicator that by the Justice’s standard, Google could well be engaging in unlawful behavior.

“In his dissent in that case, Scalia commented that, ‘Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws – or that might even be viewed as procompetitive – can take on exclusionary connotations when practiced by a monopolist.’ …  The Supreme Court standard for a monopoly is control of two-thirds of a market or more, so Google appears on that basis to qualify.”

Google currently controls 79 percent of the online search market, certainly more than the Supreme Court’s two-thirds standard. Since Google has proven unwilling to change the illegal practices under investigation around the world, it now seems there is plenty of support for the FTC’s case to end these anti-competitive practices once and for all.