First, anybody that considers the many forms of illegal speech that are unprotected by the First Amendment: perjury, libel, slander, misrepresentation, lying under oath, fraud, deceptive practices, falsifying documents, collusion, conspiracy, impersonating a police officer, stealing, vandalism, graffiti, inciting a riot, etc., will take Google’s imagined blanket immunity from antitrust laws on free speech grounds with a grain of salt. Google exaggerates its “free speech” rights to protection from antitrust, just like it exaggerates its “fair use” rights to take others’ property without permission.

Second, the U.S. Constitution is not operative in the 53% of Google’s business which it conducts outside of U.S. sovereignty. The European Union, South Korea, Argentina, India, and Brazil, which are all conducting antitrust investigations into Google’s dominance and alleged anti-competitive practices, are not bound by America’s freedom of speech protections.

Third, Professor Volokh’s free speech defense explicitly addressed only search results, and not the ads/sponsored listings that appear immediately above Google’s search results (and closely resemble search results), and the ads that appear to the right of the search page. “We focus in this submission on Google search results for which no payment is made to Google, because they have been made the subject of recent debates; we do not discuss, for instance, the ads that Google often displays at the top or right-hand side of the search results page.” This sweeping caveat makes much of the paper’s analysis moot because the antitrust charges against Google are substantially that Google has market power and strong financial incentives to abuse its market power to favor its own or affiliated content over competitors’ content in its search results and in its advertising practices.

Fourth, these many antitrust investigations and potential prosecutions around the world are fact-based determinations of whether Google has violated those jurisdictions’ competition laws. As much as Google would like to divert attention and focus from the alleged bad acts Google has been accused of, to focus attention on its claimed free speech rights to run its business without regard to others, the legal processes at work here will be driven by whether or not their laws have been broken, not by Google’s effective claim that they are above the law generally, and above antitrust law specifically. In other words, Google can run from the facts and the process, but it can’t hide from the consequences of breaking the law.

Fifth, it is ironic that Google is spotlighting its First Amendment right to “edit” its search results speech, like a newspaper has freedom of speech and the press, because it is basically a defense against an antitrust remedy if Google is found guilty of antitrust violations. In making a big deal of its defense against a hypothetical antitrust remedy, before Google has been found guilty of anything, strongly suggests that Google either believes it is guilty, or that it will be found guilty of breaking antitrust law.

Finally, it is also ironic that Google is now claiming it should be considered like a newspaper for free speech purposes, given that it considered buying the New York Times, but decided against it because that would “would sabotage its identity as a neutral search engine,” according to Google author, Ken Auletta.

In sum, given the deep flaws in Google’s legal arguments claiming near blanket immunity from antitrust prosecution on free speech grounds, could this really be more of a political narrative and “Take Action” plan Google is attempting to establish? Could this effort to politically link antitrust as a threat to free expression really be a “dog whistle” pitch to its seven million Internet allies that joined Google to oppose pending anti-piracy legislation (SOPA/PIPA) on the ostensible charge that it was “Internet censorship” and a government attempt to “break the Internet?”

In helping lead the opposition to anti-piracy legislation on free speech grounds, Google co-founder Sergey Brin said on Google+ that: “the newest threat to free speech has come from none other but the United States… I am shocked that our lawmakers would contemplate such measures that would put us on a par with the most oppressive nations in the world [China and Iran].”

It is one thing for Google to orchestrate opposition to pending legislation, it is quite another to potentially or implicitly target global law enforcement in a similar manner, when it has already been found by the FCC to have impeded a Federal law enforcement investigation.

The EU’s latest round of mobile price regulation provides a golden opportunity to show how market competition produces much better results for consumers than government price regulation. Ironically, the European Parliament voted this week to lower mobile roaming charges by mid-2014 to levels that will still be much higher than America’s competitive wireless market prices are today.

Per New York Times reports, the EU mandated price for making a roaming mobile voice call will be reset from 35 cents a minute today to 19 cents a minute by mid-2014, and the price for receiving a roaming mobile voice call will be reset from 11 cents a minute today to 5 cents by mid-2014. Putting this in perspective, Recon Analytics’ research shows that Americans pay 4.9 cents a minute vs. 16.7 cents a minute for Europeans — ~70% less; and because of these dramatically lower American wireless prices, Americans consumers use more than twice as much wireless as Europeans, 875 minutes of use per month vs. 418 minutes for Europeans. Simply, the EU’s ~50% mandated price reductions will still have European consumers paying much more for mobile usage even if one incorrectly were to assume that competition won’t further lower the market price for American consumers like it has every year.

By way of important background, the EU’s penchant for government intervention has them in the midst of an unenviable downward cycle dynamic where price regulation begets more price regulation. Europeans have high roaming mobile rates because the EU has long over-regulated their landline incumbent telcos with forced unbundling at economically-unsustainable, government-set rates, which destroys the economic incentives to invest in infrastructure, while also discouraging competitors from investing in the deployment of competitive facilities/infrastructure because they can’t possibly beat the uneconomic price and cost structure forced on the incumbents.

The EU finds itself more aggressively regulating mobile roaming rates and now mobile Internet rates, because the companies are constantly searching for a service that is not as strictly-price-regulated to raise rates to make up for the under-earning that the rest of their assets and business suffer from. Sadly for Europeans, it looks like the European Parliament may be ensuring that the landline and mobile Internet infrastructures will suffer from the same uneconomics that it has shackled its wire line and wireless voice businesses with.

In sum, the unenviable pickle that the EU finds itself in today is that its shortsighted communications policy of keeping many prices artificially low has starved its companies of the financial wherewithal to fund needed infrastructure modernization, which in turn requires governments to step in to fund communications infrastructure investment when there is scant public money to pay for it.

Thus, the EU has stunted communications infrastructure investment overall by not allowing its companies to be able to invest and earn a return on investment, at a time when Government’s can’t afford to do it either. EU price regulation has caused a lose-lose public-private dynamic in stark contrast to America’s win-win private-public dynamic of promoting facilities-based market competition, which funds multiple 4G LTE national wireless infrastructures with falling prices and robust innovation — all without any need for Government funding.

But Netflix isn’t in need of public assistance; it is America’s video subscription leader with 23 million subscribers. Netflix has $3.3b in annual revenues, $1.2b in gross profits, $800m in cash, a 34% return on equity, and a market valuation multiple over twice the market’s. And Netflix flexed its exceptional pricing power last year in raising its prices 60% without losing many subscribers.

Netflix’ net neutrality plan is a shameless Washington plea for corporate welfare via Government price regulation of privately-owned broadband networks so… Netflix’ uniquely voracious 33% usage of the Internet’s traffic peak does not cost Netflix anything! Greedily Netflix is asserting that it somehow has an inalienable “right” to forever gorge on nearly a third of the Internet’s peak capacity without any obligation, responsibility or expectation to either responsibly use, or contribute to the cost of operating or investing in, the Internet infrastructure that they use more than any entity.

Yes I said overuse. The Internet was never designed to be a broadcast network as Netflix is using it as. In the Internet’s early commercial history, companies like Akamai formed to address this inefficient and wasteful use of the Internet by enabling the caching of high-bandwidth content closer to users so that the Internet backbones would not be clogged with unimaginably repetitive streaming. If all content companies streamed all their content over the Internet like Netflix does, it could clog the Internet roughly a hundred times over.

Central to the Internet’s value is that it is efficiency enhancing, but only if tera-bandwdith-whales like Netflix, do not use it hyper-inefficiently. Responsible Internet companies distribute their content responsibly. I am not picking on just Netflix on this issue. I strongly criticized Google-YouTube a few years back for similarly inefficiently overusing Internet capacity. I now applaud Google for reversing its runaway Internet usage via more responsible network management and for investing in extensive caching of its content nearer to its users so that it does not consume a wildly disproportionate share of the Internet’s capacity like Netflix does now. Netflix imagines benefits without costs. It does not want to invest in responsible network management on its part, it wants to shift that cost to consumers and everyone else to publicly-subsidize its profitability.

Netflix has little credibility leading the charge for “the public interest” here when their motives are so obviously self-serving and undisclosed, and when the way they manage their own network and distribution is so bandwidth inefficient and wasteful.

Netflix has even less credibility when it criticizes Comcast for offering XBox users unlimited usage on a private Comcast network — i.e. not subjecting it to its public Internet 250g usage cap. What’s wrong with offering a private managed data service? It is expressly allowed in the FCC’s Open Internet order.

What kind of warped thinking interprets it to be the public interest to somehow disallow any private data innovation and service/model experimentation on privately-owned-and-managed network bandwidth? Microsoft’s XBox replaces the much-maligned standard set-top box, and combined with a privately managed network, offers a completely different consumer experience.

Netflix’s view of net neutrality effectively would ban innovation on devices (including set-top boxes and remote controls) and on the network (including bandwidth management and new business models) so that there can only be innovation by apps providers like… Netflix. That is a patently self-serving policy position that ignores consumers’ interest and demand, and common sense.

Netflix’ CEO has lost any remaining credibility in claiming to The New York Times that “net neutrality has broad consumer and voter support.” In the 2010 elections, ninety-five candidates for the U.S. House and Senate signed a public pledge in support of net neutrality — all lost their elections, every single one of them. Yes 95-0. It makes one wonder about what other false assertions Netflix is making to feather its own nest — doesn’t it?

*****

Previous Netflix posts:

1. Is Netflix the AOL of Web Streaming?
2. Netflix the Unpredictable
3. Netflix Crushes its Own Momentum
4. Netflix’ Glass House Temper Tantrum Over Broadband Usage Fees
5. Fact-Checking Netflix’ Net Neutrality WSJ Op-ed
6. Netflix’ Open Internet Entitlement Hubris
7. Sinking Level 3 Seeking FCC Internet Regulation Bailout
8. Level 3-Netflix Expose their Hidden Agenda
9. Level 3 & Net Neutrality Ignorance Unleashed

I. Top Ten List of Untrue Google stories

1. Street View WiFi was a mistake of one engineer.
2. Google works for users.
3. Competition is a click away.
4. Google search is unbiased.
5. Google clearly identifies its advertising.
6. Privacy is a high priority at Google.
7. “We are a law abiding company.”
8. “We do not steal.”
9. Google’s “Don’t be evil” credo creates a morally superior company.
10. Google is open.

II. What other Google stories are untrue?

Google works for users – Google deceptive story #2. Google’s corporate philosophy prominently displayed on the “About Google” page represents: “Ten Things we know to be true. #1 Focus on the user and all else will follow. Since the beginning, we’ve focused on providing the best user experience possible. Whether we’re designing a new Internet browser or a new tweak to the look of the homepage, we take great care to ensure that they will ultimately serve you, rather than our own internal goal or bottom line.”

The truth is that users are not the customers for which Google works, users are the product that Google effectively sells to advertisers. With ~99% of their ~$39b in annual revenues coming from advertisers, Google is obviously in the advertising business and its financial interests are aligned with advertisers not users. Remarkably in Google’s public representation of its business on its website under: “What We Do,” there is no clear representation that Google is an advertising company or that Google’s paying customers are advertisers.

The ultimate outcomes of the EU and FTC antitrust investigations and litigations will determine factually whether Google’s business works for users as they represent, or advertisers as the financials and spending show. Tellingly, virtually all of Google’s customer-facing personnel serve advertisers, and virtually all of its users find it near-impossible to reach a Google employee by phone or email to address their concerns.

Competition is a click away — Google deceptive story #3. Former Google CEO Eric Schmidt explained Google’s oft-stated primary antitrust defense. “We are one click away from losing you as a customer, so it is very difficult to lock you in as a customer in a way that traditional companies have.” This fundamental Google antirust defense story line is not true. First, it fails the dictionary test in that the dictionary definition of a “customer” is “one that buys goods or services,” when search is free. Second, it fails the real world test, in that if users were Google customers, why does Google have no customer service operation for users or a way for a user to connect with a Google employee? Lastly, it fails the law enforcement test in that the DOJ, FTC, and EU have already determined that Google’s customers are advertisers not users.

Google search is unbiased — Google deceptive story #4. Google’s search results “are unbiased and objective,” per Google’s 2004 Founders Letter. “We never manipulate rankings to put our partners higher in our search results and no one can buy better PageRank. Our users trust our objectivity and no short-term gain could ever justify breaching that trust.” per Google’s longstanding management philosophy.

Once again, the ultimate outcome of the EU and FTC antitrust investigations/litigations will determine if this public representation Google has used to build and maintain users’ trust is untrue. Preliminary official findings — found in the U.S. Senate Antirust Subcommittee letter to the FTC and the reported initial findings of EU antitrust staff — do not bode well for the truthfulness of Google’s story that its search is unbiased and never manipulated.

Problematically, a 2000 Stanford research paper by Google founders Larry Page and Sergey Brin concluded emphatically that advertising-funded search engines were inherently biased: “…we expect that advertising funded search engines will be inherently biased towards the advertisers and away from the needs of the consumers. Since it is very difficult even for experts to evaluate search engines, search engine bias is particularly insidious.”

Google clearly identifies its advertising — Google deceptive story #5. “Advertising on Google is always clearly identified as a “Sponsored Link,” so it does not compromise the integrity of our search results,” per Google’s corporate philosophy. Google implies that its search has integrity because it clearly identifies ads. That is not the whole truth and nothing but the truth. The Australian Competition and Consumer Commission recently won a decision from Australia’s Full Federal Court that some Google advertising “was likely to mislead or deceive consumers.”

In addition, the research of Harvard Business School Assistant Professor Ben Edelman has exposed that Google is far from clearly identifying its advertising. “The FTC has called for “clear and conspicuous disclosures” in advertisement labels at search engines, and the FTC specifically emphasized the need for “terms and a format that are easy for consumers to understand.” Unfortunately, Google’s new advertisement labels fail this test: Google’s “Ads” label is the smallest text on the page, far too easily overlooked; Google’s algorithmic and advertisement results are merged within a single set of listings; Google’s “Help” explanations are inaccurate; and Google uses inconsistent labels mere inches apart within search results, as well as across services.”

Privacy is a high priority at Google — Google Deceptive Story #6. “Putting our users first also means that we are deeply committed to their privacy…” per Google Deputy General Counsel Nicole Wong in 2009 testimony before the House on Privacy. At “Google, privacy is something we think about every day across every level of our company. We make this effort because privacy is both good for our users and critical for our business,” per Google’s Privacy lead Alma Whitten in testimony before the Senate in 2010. “Our business depends on protecting the privacy and security of our users. Without the trust of our users, they will simply switch to competing services, which are always just one click away,” per Google’s Director of Public Policy, Alan Davidson, in testimony before the Senate in 2011.

If privacy was indeed a high priority for Google: Why would Google have a litany of 35 privacy scandals? Why would the FTC be investigating Google for violating its Google-Buzz privacy agreement for hacking into Apple’s Safari browser to bypass users’ privacy protections? Why would the EU be broadly objecting to Google’s new privacy policy as a violation of EU law?

“We are a law abiding company” — Google deceptive story #7. Google’s former CEO Eric Schmidt told the British Daily Mail last year that “we are a law abiding company.” Google’s long rap sheet belies Google’s story-telling. History likely will judge Google less by their self-puffed Googley Do-Right image and more by the accumulated facts of its above-the-law behavior and its robber baron public record.

“We do not steal” — Google deceptive story #8. Last year, then Google CEO Eric Schmidt told the French newspaper Liberation: “we do not steal.” Sadly, Google’s public record shows a pattern of systematic theft of others property: trademarks, copyrights, patents, trade secrets, contact lists and private information, via at least eight distinct patterns of theft perpetrated over several years time.

Google’s “don’t be evil” credo creates a morally superior company — Google deceptive story #9. Just last month, Google CEO Larry Page reaffirmed Google’s ethical and moral aspirations in Mr. Page’s “2012 update from the CEO.” It stated under the header “Love and trust:” “We have always wanted Google to be a company that is deserving of great love. But we recognize this is an ambitious goal because most large companies are not well-loved;” and “We have always believed that it is possible to make money without being evil.”

Google’s strong implication again is that Google is morally superior to other “large companies” who make money “being evil.” However, a detailed comparison of Google’s behavior with Google’s trumpeted high ethical/moral standards raises serious questions about whether Google indeed practices what it preaches.

Google is open. — Google deceptive story #10. To trumpet Google’s openness bona fides, Google SVP Jonathan Rosenberg posted “The meaning of open,” essentially proclaiming Google the paragon of openness. However, when one fact-checks Google’s record it proves overstated and not entirely true. For example, Udi Mandber, Google’s VP for search quality famously posted about Google: “We are, to be honest, quite secretive about what we do.”

III. Conclusion

The FCC’s investigation provided a bay window view into Google’s culture of deception. Google’s legendary PR machine and storytelling capability convinced eighteen countries to end their investigations of Street View’s WiSpy scandal based on emphatic Google representations it was a just mistake of one person and that the company overall was not involved or culpable in the process. The FCC’s investigation exposed those representations as patently untrue.

As the old adage teaches, now that global law enforcement has been badly fooled by Google for years — in the highest profile, most-global privacy scandal in the world — the shame is on Google. However, if global law enforcement now allows itself to be fooled again by Google’s slickest of storytelling operations, (concerning the wide swath of law enforcement problems before them: antitrust, privacy, fraud, property infringement, etc.) — the shame will be on global law enforcement. Forewarned is forearmed.

The FreePress radical fringe who care not for the rule of law, are again goading the FCC to trump up some new public interest rationale and statutory theory to allow the FCC to transmogrify its limited public interest authority into unbounded authority that disregards the law, FCC precedent, or the facts. This radical manipulation of the process may be good for forwarding FreePress’ anti-business, Internet commons goals, but it is not good for the institution of the FCC, which is a creature of Congress and subject to the rule of law. And nor is it good for the American public.

The FreePress coalition appreciates that the FCC is in search of relevance in the broadband Internet era, and is preying on that uncertainty to goad the FCC to re-imagine its own legal authority by declaring broadband a Title II common carrier service and/or by interpreting their limited public interest authority boundlessly. If the FCC determines it needs new authority, it must seek it from Congress.

If the FCC were to somehow attempt to block the Verizon-Cable secondary market spectrum transaction, which is enabled and encouraged by law and FCC policy, the FCC could expect to be challenged in court for overstepping its authority and acting in an arbitrary and capricious manner a la the challenges to the FCC’s Open Internet Order and the Data-Roaming Order. It would be an FCC overreach trifecta. And it would tragically leave valuable fallow spectrum — fallow much longer.

The FCC’s Public Interest Authority is Bounded

Opponents want the FCC to imagine their public interest authority to be boundless. However, Congress has bounded the FCC’s public interest authority, with law that makes it the public interest for market forces, i.e. spectrum auctions and secondary markets, to be the mechanism for allocating spectrum, not the FCC. Just this year Congress reaffirmed this policy in law, in the incentive auctions authorization, where Congress bounded the FCC’s spectrum authority to general applicability. Moreover, under Section 310(d) of prior law and FCC precedent, the FCC decided it is statutorily prohibited from considering “whether some other proposal might comparatively better serve the public interest.” Simply, the FCC can approve or not approve Verizon-Cable on the legal merits, but it cannot disapprove it because it wishes to effectively allocate it to another buyer.

Thus the FCC must respect its own secondary markets goals/rules/precedents, including its operative 2000 policy statement on promoting secondary markets for spectrum: “The goal of this effort is to promote the operation of competitive markets for the sale and lease of the right to use spectrum by licensees. This will facilitate both the transfer of spectrum usage rights for existing services to new, higher valued uses and the availability of unused and underutilized spectrum to those who would use it for providing service.” The Verizon-Cable transaction fits like a glove into this operative FCC policy framework as Verizon is proposing to put currently fallow spectrum to fastest best use.

The FCC Must Apply the Spectrum Screen Fairly

To ensure the FCC does not operate arbitrarily or capriciously, it must fairly apply the FCC’s spectrum screen as it has applied it to others, and also ensure that the spectrum screen is up-to-date and unbiased in that it reflects the real total amount of spectrum already in, or soon coming into, the wireless ecosystem. The evidence shows that if the FCC used an accurate up-to date spectrum screen — including the spectrum planned for LTE use from Sprint and Clearwire — the Verizon-Cable spectrum would not come close to approaching the FCC’s spectrum screen limits. Even if the FCC were to employ their currently out-of-date spectrum screen, the Verizon-Cable transaction would implicate less than 2% of the pops affected and thus could be easily remediated to clear the way for approval.

In sum, some opponents are trying to goad the FCC into disregarding the law, precedent, or facts, in order to block this normal, encouraged secondary market transaction — a transaction that efficiently puts valuable fallow spectrum to use fastest in order to produce faster wireless broadband service for the most consumers.

The FCC has already put much of its perceived wire line regulatory authority at risk in flouting the D.C. Appeals Court decision with its Open Internet Order and Data-Roaming Order. If the FCC listens to opponents encouraging the FCC to overreach its perceived public interest authority as well, and then acts in an arbitrary and capricious manner to justify its decision and authority, the FCC ultimately could put much of its remaining perceived authority at risk.

***

Verizon-Cable Series:

Part 8 AAI’s Analysis of Verizon Cable is Industrial Policy Not Antitrust

Part 7 Verizon-Cable Hearing Exposes Weakness of the Opposition

Part 6 T-Mobile to FCC: Give us a Do-over and More Spectrum Too

Part 5 Verizon-Cable Senate Hearing: Competitive Facts vs. FreePress Fiction

Part 4 Verizon-Cable: Opponents Need FCC to Overreach Authority

Part 3 Why the Verizon-Cable Agreement is in the Public Interest

Part 2 Why the Verizon-Cable Agreement Increases Competition

Part 1 Verizon-Cable Spectrum: Is FCC Open to Competition?

Google’s poor and defiant track record in respecting government agreements and settlements is likely one of the reasons the FTC hired an undefeated former Federal prosecutor and litigator to lead their Google antitrust probe and potential litigation against Google. The EU and the FTC are naturally exceptionally skeptical about negotiating an antitrust settlement with Google, given the substantial evidence that shows Google is consistently less-than-trustworthy in abiding by its agreements with Governments.

Specifically, the evidence shows that Google has not abided by either of its privacy agreements with the FTC concerning Street-View WiSpy or Google-Buzz, nor has Google fully-abided by its criminal Non-Prosecution-Agreement with the DOJ concerning its advertising of illegal prescription drug imports. In addition, Google attempted to broadly game the justice system in negotiating a Google Book Settlement that would have rewarded it with a partial monopoly for its mass copyright infringement.

1. FTC-Google WiSpy Privacy Agreement: In a 2010 letter to Google that got little media attention at the time, the Federal Trade Commission (FTC) ended its inquiry into the Google Street View WiSpy matter because of: Google’s public representations that the privacy breach was “inadvertent” and “a mistake;” and also because Google made new public commitments to improve its privacy practices — in its official Google Blog post entitled: Creating Stronger Privacy Controls Inside Google (10-22-10). The FTC then handed off that investigation to the Federal Communications Commission (FCC) to determine if Google violated wiretapping laws, which fall under the FCC’s jurisdiction. Seventeen months later, the FCC fined Google $25K because Google “deliberately impeded and delayed the Bureau’s investigation” per its enforcement Notice. The FCC also indicated in its enforcement Notice that Google’s lack of full cooperation made it impossible to determine if Google violated the law prohibiting wiretapping or not.

Importantly, the FCC’s investigation apparently does prove in this instance that Google misrepresented its practices and behavior to the public/FTC. This reasonably could compel the FTC to reopen its WiSpy investigation under the FTC’s Section 5 authority, which prohibits deceptive practices and misrepresentation. The FCC’s official investigative record directly contradicts Google’s public representations that their effort was “inadvertent,” or a “mistake” made by a lone engineer, or that no other Googlers knew about it until 2010. On the contrary, the FCC’s new evidence shows that it was an intentional and planned data collection effort from 2006-2008, and that many more Googlers were aware of, and complicit with, Google’s violation of millions of Americans’ privacy from 2008-2010. Moreover despite Google’s representations that the private data was not used in a product or service, the FCC’s evidentiary record proves Google employees indeed tested the collected payload data to determine if this data could be useful for Google products of services.

Let’s briefly summarize the most damning findings of the FCC’s investigation. We now know Engineer Doe (Marius Milner) specifically and purposefully wrote computer code that by design collected personal “payload data,” i.e. all WiFi signals, including passwords, emails among other sensitive information. The purpose of that code was to collect a new and different data set that could have potential use for improving search algorithms or other Google products and services, to be determined later — which would be consistent with Google’s mission: “to organize the world’s information and make it universally accessible and useful.” It was so purposeful that it was written directly into the required design document for the project, where it stayed unchanged throughout the WiSpy effort from 2006-2010.

The FCC report also shows Engineer Doe discussed the payload collecting code with other engineers on the team and that many other engineers either proofed it, modified it, reviewed it or “pushed” it into the field without changing the code’s purpose to collect payload data: emails, passwords, etc. Engineer Doe even discussed the data collection with the Search algorithm team to see if it might be useful to them.

A new revelation that is shocking and especially disturbing, is that after long publicly representing that the private data was safe from viewing because it never physically left the hard disks that collected the data, at least in the U.S., the data was uploaded “to servers at a Google data center in Oregon.” What we still don’t know is why this data was uploaded to servers where it potentially could be accessible to a wide swath of Google engineers, (and possibly even the public via Google’s universal search index in Big Table), if there actually was no interest in seeing how this data could be useful to other Google projects, products or services. (Given that the FTC is already investigating Google’s search for deceptive practices, the FTC should seek to determine if, how, who and when Google fully-purged its servers of this ill-gotten information and who, if anyone, has accessed this payload data on Google’s servers online, within or outside Google.)

Finally we learned from Google’s letter where it acceded to the $25k fine, that Google told the FCC that Engineer Doe “had cooperated fully with Google’s investigation, stating that he believed the collection of publicly broadcast information sent over unencrypted WiFi networks to be lawful.” Ironically, Google is effectively using Engineer Doe’s exercise of his Constitutional Right to not incriminate himself to publicly trumpet Google’s innocence here. If Marius Milner, aka Engineer Doe, was given immunity from prosecution to testify before Congress, as recommended by Consumer Watchdog, the government then could learn the information the FCC enforcement staff have indicated is necessary to determine if the Street View WiSpy affair actually was the largest illegal wiretapping of U.S. citizens in U.S. history.

2. FTC-Google-Buzz Settlement: Last October, Google settled with the FTC over charges of “deceptive privacy practices” and legally committed, among other things “…to obtain express affirmative consent from the Google user…” However, just a few months later, Google consolidated ~sixty of its privacy policies into one policy without any opt-out option, i.e. without any “express affirmative consent from the Google user.” Google then rejected requests from EU authorities to delay implementation of the new privacy to determine if it abided by EU law. And Google blew off a request by 35 state Attorneys General to meet with Google’s CEO about their objections to the new privacy policy prior to its implementation.

Moreover in February, Google was caught by a Stanford researcher having hacked Apple’s Safari browser to circumvent both users’ and Apple’s privacy protections to enable tracking for Google+ advertising per the WSJ. Google quickly stopped the offending hacking, implying wrongdoing, but did not apologize, and was misleading in its defense, necessitating the FTC to open a new inquiry into the matter to determine if Google broke the FTC-Google-Buzz privacy settlement in not implementing as required “…the design and implementation of reasonable privacy controls and procedures…”

Furthermore, the FTC’s investigation will have to determine if Google again engaged in more misrepresentation in how it publicly explained its actions in the Safari hack affair, misrepresentation which is expressly prohibited in the FTC-Google-Buzz deceptive practices settlement (Google “shall not misrepresent in any manner, expressly or by implication: A. the extent to which respondent [Google] maintains and protects the privacy and confidentiality of any covered information.“)

3. DOJ-Google Criminal Non-Prosecution-Agreement: In the August DOJ-Google non-prosecution-agreement that resulted in Google accepting responsibility and paying a $500m corporate penalty for knowingly advertising illegal prescription drug imports into the United States for eight years, para 14 specifically prohibited anyone speaking publicly on behalf of Google from contradicting any of the facts enumerated in the agreement.

This February, a lawyer representing Google in a shareholder suit on this very matter apparently flagrantly flouted that prohibition. To a Delaware state court he asserted that when the U.S. Attorney handling this case publicly described some of the facts in the non-prosecution agreement, that he was “so far off the reservation that the Justice Department apologized to Google for it and muzzled him,” per the WSJ. However, in a stunning rebuke of this misrepresentation and mischaracterization of fact before the Delaware state court, the Rhode Island U.S. Attorney’s office responded in an obvious un-muzzled way to the WSJ that “the U.S. Attorney has never issued apologies to anyone on this matter,” and the DOJ spokesperson echoed: “We did not apologize.” Apparently Google did not respect the clear gag-order terms of the DOJ’s non-prosecution-agreement, and is likely now on very thin ice on this matter.

4. Google Book Settlement: Google proposed two different book settlements that were opposed by the U.S. DOJ for violating three different bodies of law: antitrust, copyright and class action, in 2009, and again in 2010. Germany and France also formally opposed the book settlement in court as illegal. U.S. Federal District Court Judge Chin formally rejected the settlement because it would be anti-competitive and reward Google for: “wholesale copying of copyrighted works without permission.” After all that transatlantic legal negotiation, condemnation and opposition, Google continues its willful mass infringement unabated to this day — with 15 million books copied without permission and counting.

Conclusion: It appears the EU and FTC are more inclined to litigate than settle Google’s antitrust cases, in part because Google’s poor and defiant record of not respecting previous government agreements and settlements, inspires little trust that Google will negotiate in good faith, fairly represent their behavior in the future, or faithfully abide by whatever settlement could be reached.

In addition, antitrust authorities seem well aware that they are confronting a unique global serial scofflaw, which has a long rap sheet, an above-the-law culture, over a billion users, and behavior that affects more of the economy than maybe any other company in the world.

Lastly, antitrust authorities and Google are light years apart in negotiations for three big reasons. First Google denies that they have any market dominance and that competition is but a click away for users, when the EU believes they are a search advertising 90+% monopoly and the DOJ and FTC have already concluded Google is dominant. Second Google does not believe it has done anything wrong in offering innovative services to users and providing what it editorially believes are the best search results for users, while the EU and FTC apparently have concluded in their respective investigations that Google is anti-competitively self-dealing and punishing competitors. And finally, Google maintains there can be no remedy that will not impede innovation or break the Internet, when the EU and the FTC apparently believe there needs to be some enforcement mechanism to ensure the illegal behavior does not continue into the future.