Google Makes a Face Turn On User Privacy | Opinion

The Justice Department (DOJ) is currently suing Google over the tech giant’s monopolization of the internet search market. To defend the company’s bottom line, Google executives have made a face turn, hypocritically attempting to position themselves as defenders of online user privacy. The Trump administration shouldn’t fall for it.

The DOJ is standing on strong precedent to impose remedies against Google for its monopolization of the general search market. Google, likely knowing that, is resorting to all the usual sleights of hand. But one really stuck out: the company claims that the DOJ wants to “force Google to share your most sensitive and private search queries with companies you may never have heard of, jeopardizing your privacy and security.” CEO Sundar Pichai doubled down, testifying that he has “a lot of concerns around privacy” with respect to DOJ’s proposed remedy for his company’s monopoly. The company is even brining in its privacy expert to testify to that effect.

You read right. The same company that has been the subject of multiple enforcement actions by the Federal Trade Commission (FTC), several attorneys general, and class action suits for misusing personal data is telling you that maintaining its monopoly is essential for your privacy.

To borrow Judge Amit Mehta’s words, “Google’s own records show that [its] privacy rationale was suspect.”

In fact, one of Google’s privacy violations was so egregious that the FTC created a first-of-its-kind settlement, requiring Google “to implement a comprehensive privacy program” because, unbelievably, it didn’t have a sufficient one in place.

But why is Google using privacy as a defense now? So that it can continue to treat the general search market as its private fiefdom.

Last year, the Court found that Google’s reticular machinations were designed to annihilate its competitors’ ability to scale up. This is important because, as Judge Mehta explained, “securing users to generate scale, in order to then exploit the benefits of scale, is a significant barrier to entry” for any would-be competitors to Google. The fact is that scalability allows competitors to increase the quality of their own search engines. If Google has siphoned off almost all access to users through exclusive default arrangements and holds on to all their search data, then competitors only have two choices: pay Google for its datasets or die.

To ameliorate this problem, President Donald Trump‘s Department of Justice has laid out a plan. The DOJ proposed that Google conduct standard conduct remedies, such as a prohibition on exclusionary contracts with third-party vendors, like Apple, and enter into data sharing arrangements with competitors. It has also offered up structural remedies, like enforcing divestitures of Chrome and Android.

Google, in a last-ditch effort, is trying to say the DOJ’s actions somehow affect user privacy. Ironically, user privacy is precisely why these remedies are necessary.

Let’s start with the basics. Antitrust law has generally operated under the “consumer welfare” standard. Under this standard, privacy violations affect consumer welfare because they can indicate a reduction in product quality. As one academic argued, “privacy harms can lead to a reduction in the quality of a good or service, which is a standard category of harm that results from market power.” Additionally, in FTC v. Facebook, the D.C. District Court agreed that a degradation in user privacy was a form of competitive harm on those grounds.

To understand why, it’s important to evaluate how Google’s network effects work. Google requires more users from which to mine data to increase its already vast profit margins from selling ads. This means Google effectively farms consumers for their personal data to make a buck (or billions).

Given that Google controls nearly 90 percent of the search market and all of that data are on its servers, one breach can be a national catastrophe. Worse, consumers can only avail themselves of the privacy protections that Google provides, which, as alluded to above, are less than stellar. Even worse, because there is no feasible competitor to it, Google has no market incentive to put consumer privacy or even its consumers first.

Frankly, the fact that it has no true competitors gives Google more reason to continue violating users’ privacy. There’s no risk of consumer backlash; only the reward of more ad revenue.

These issues demonstrate why the DOJ’s proposal with respect to the data-sharing requirements and divestitures of Chrome and Android can only encourage more online privacy. They open the data distribution channels to allow other, more privacy-focused search engines, like DuckDuckGo, Startpage, or Qwant, to actually scale up.

It’s important to note that the data Google would be forced to share is statistical, anonymized data—not, as Google characterized, anyone’s personal information. There’s no privacy implication to the DOJ’s data-sharing requirement at all. Even so, the department requires Google to put “proper privacy safeguards in place” when sharing it.

What’s more, Assistant Attorney General Gail Slater, who is leading the antitrust case, fully appreciates the need to protect user privacy. In 2018, she advocated strongly for a national privacy law when she served as an advisor in the White House’s National Economic Council. Thus, the notion she would sign off on a remedy that degrades the integrity of users’ privacy is ridiculous.

If anything, the DOJ’s proposal is a privacy-forward approach, something Google cares nothing about.

Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C.

The views expressed in this article are the writer’s own.