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‘Finally, We Have One’

Experts: Google Lawsuit Shows US Failure to Protect Consumer Privacy

By Jackson Chen

The U.S. Justice Department’s antitrust lawsuit against Google illustrates how federal regulators failed to protect consumer privacy as technology companies exploded to dominate — if not control — nearly every aspect of American life, experts told Digital Privacy News.

“What you’re seeing is the result of years and years of the Federal Trade Commission’s failure to take privacy into consideration,” said Caitriona Fitzgerald of the Electronic Privacy Information Center (EPIC).

“When you’re looking at a big company like Google or Facebook, so much of the way it is now is because they want so much of that personal data they hold.”

“What you’re seeing is the result of years and years of the Federal Trade Commission’s failure to take privacy into consideration.”

Caitriona Fitzgerald, Electronic Privacy Information Center.

In a 64-page complaint filed Tuesday in U.S. District Court in Washington, the Justice Department and 11 Republican state attorneys general alleged that Google engaged in monopolistic actions to maintain its dominance in the search-engine market.

‘Anticompetitive practices’

According to the complaint, the company’s “anticompetitive practices” denied market competitors the ability to compete effectively and forced American consumers to accept Google’s policies, privacy practices and use of personal data.

“For years, Google has entered into exclusionary agreements and engaged in anticompetitive conduct to lock up distribution channels and block rivals,” the lawsuit said. “Google has thus foreclosed competition for internet search.”

According to the action, Google allegedly struck agreements with such device manufacturers as Apple, LG and Samsung to have its search engine be the default for mobile devices and computers.

“Absent a court order, Google will continue executing its anticompetitive strategy, crippling the competitive process, reducing consumer choice and stifling innovation,” the complaint read.

It also alleged that both advertisers and regular people were harmed by Google’s position as “the unchallenged gateway to the internet for billions of users worldwide.”

With Google controlling about 90% of all global web searches and dominating search-based advertising, other companies like Bing and the privacy-focused DuckDuckGo have struggled to compete, according to the lawsuit.

Google’s Response

Kent Walker, Google’s senior vice president of global affairs, said in a blog post Tuesday that the “lawsuit by the Department of Justice is deeply flawed.

“People use Google because they choose to, not because they’re forced to or because they can’t find alternatives,” he said.

Walker added that the lawsuit instead would foster lower-quality search alternatives, raise cellphone prices and impede consumer-search activities.

Google, founded in 1998, is based in Mountain View, Calif.

The Justice Department’s lawsuit marked the federal government’s first antitrust action against a major technology company since Microsoft in 1998.

“People use Google because they choose to, not because they’re forced to or because they can’t find alternatives.”

Kent Walker, Google.

After years of litigation, including a dramatic trial which a federal judge ordered a split of the company, the agency went back on its desire to break up Microsoft — instead ultimately opting for a consent decree in 2002 that restricted Microsoft from bundling its products so blatantly.

Few Options for Consumers

In explaining the possible privacy implications of the latest lawsuit, EPIC’s Fitzgerald explained that when companies like Google dominated the market, consumers were left with little choice and were forced to accept whatever privacy policy was offered.

She also warned that having all consumer data gathered by the world’s biggest search-engine provider posed risks.

“As we’ve seen in recent years, foreign actors have tried frequently to access data of U.S. consumers for various reasons,” Fitzgerald, the organization’s interim associate director and policy director, told Digital Privacy News.

“Any time you have consolidation of personal data in one place, there’s a threat of data breach — but also the threat of the amount of data Google has on us and how that could impact our life choices.”

Questions Abound

The federal government pursuing such a huge tech company raises many questions, including whether firms of such size can be effectively regulated — even whether Google ultimately can be broken up, experts said.

Avery Gardiner, general counsel for the Center for Democracy and Technology, said the lawsuit would be an interesting development in how judges applied antitrust law to a more technological company.

In the Microsoft case, the government focused on the company’s personal computer software empire.

“One of the things I’ve been itching to see is more cases on this area of law, on what someone with this market power can get in trouble for,” Gardiner told Digital Privacy News.

“Finally, we have one — but we’re in this strange world of taking principles from 1950 and applying them to the digital world today.”

“We’re in this strange world of taking principles from 1950 and applying them to the digital world today.”

Avery Gardiner, Center for Democracy and Technology.

Gardiner, who previously worked in the Justice Department’s antitrust division, added that the lawsuit likely would play out over several years, but that it represented a major step for litigating antitrust cases.

Consumer Privacy Issues

While the Justice Department’s lawsuit deals mostly with Google’s competitive practices, it discussed how its actions affected customer privacy, she said.

“The theory the DOJ is sharing with us in the lawsuit is that if Google didn’t have such a high percentage of the search traffic then it would be forced to compete with Bing or DuckDuckGo or potentially others on a whole bunch of things, including privacy,” Gardiner told Digital Privacy News.

“That’s hugely important that they are acknowledging that antitrust law has something to say for competition — but also for privacy and for protecting customer data.”

Rising Big Tech Criticism

The Justice Department’s lawsuit comes amid rising tide animosity toward Big Tech’s massive growth and calls the world over to address it.

The European Union, for instance, has opened investigations — fining Google $1.69 billion in March 2019 for its abusive practices in online advertising. The move followed even larger penalties in 2017 and 2018.

In September 2019, 50 U.S. state attorneys general, led by Texas Republican Ken Paxton, launched their own antitrust probe into the company.

Following the momentum, a U.S. House subcommittee grilled Big Tech CEOs in July on questions of censorship and unfair market practices.

The issue has also attracted bipartisan congressional support through reports recently released by Democrats and Republicans.

Next week, CEOs are scheduled to testify before the Senate Commerce Committee on whether they should be liable for content posted by users, while also likely touching on data privacy and media consolidation.

Bipartisan Support

Members of Congress on both sides of the aisle have hailed the Justice Department’s action as a critical step toward unleashing online competition and better serving consumers.

Sen. Josh Hawley, R-Mo., a frequent Big Tech, critic called the lawsuit “the most important antitrust case in a generation.

“Google and its fellow Big Tech monopolists exercise unprecedented power over the lives of ordinary Americans,” he said in a statement, “controlling everything from the news we read to the security of our most personal information.”

Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Committee, said, also in a statement: “There is bipartisan agreement in Congress and among federal and state antitrust enforcers that protecting competition and innovation online is essential to our economy.

“The antitrust lawsuit against Google is an important step for ensuring a competitive online space.”

Jackson Chen is a writer in Groton, Conn.

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