Google’s recent antitrust skirmish with the U.S. Federal Trade Commission is now coming under scrutiny by a congressman who is angry about media leaks that occurred during the proceedings.
U.S. Rep. Darrell Issa (R-Calif.), chairman of the House Committee on Oversight and Government Reform, sent a letter Jan. 3 to the FTC’s investigator general, Scott Wilson, asking him to immediately probe the media leaks, which Issa argued could have influenced the case.
Google essentially received a hand slap from the FTC after a 19-month investigation into allegations that the company had been manipulating its search algorithms to favor Google’s results over competitors. The FTC ruled that not enough evidence existed to prove such allegations. Instead, the company entered into a voluntary agreement with the FTC to change some of its business practices.
The problem, Issa stated in his letter to Wilson, is that multiple anonymous leaks to several news sources surfaced during the course of the probe. Such leaks are barred by law from occurring during FTC investigations until a decision is ultimately reached and announced by the agency.
“Throughout the process, nonpublic information about developments in the investigation has been inappropriately shared with the media,” Issa wrote in his letter to Wilson. “It is believed that the commission may be contributing to, or is the source of, this information. This is of concern because such leaks are prohibited by law and counterproductive to the investigative process. To determine whether the commission, or its staff, has shared nonpublic information with the public or the press about the investigation of Google, I request the Office of Inspector General promptly investigate the matter.”
Such leaks, Issa wrote, are prohibited by the FTC Act and the commission’s own operating manual, which “preclude the commission and its staff from disclosing nonpublic information to the public and media. Moreover, information that may be disclosed must be ‘for attribution and on the record,'” which was not done in the news reports about the case before a final decision was announced on Jan. 3. “Unfortunately, unnamed and anonymous sources have provided the media with nonpublic developments in the investigation of Google.”
Other lawmakers had made similar comments, Issa wrote in his letter to Wilson.
“Indeed, U.S. Senator Ron Wyden (D-Ore.) recently wrote to [FTC] Chairman Jon Leibowitz raising concern that ‘it has continually been the case’ that ‘confidential details of internal discussions’ about the investigation of Google have been revealed to the media,” wrote Issa. “In addition, U.S. Senator John Kerry (D-Mass.) recently stated, ‘FTC investigations and settlement negotiations have, unfortunately, become poorly kept secrets. And … neither the commissioners nor the business subject to their jurisdiction can do their jobs well if their deliberations or investigations are manipulated or leaked for strategic advantage.'”
Now that the Google case has been decided by the FTC, Issa said he wants Wilson to find out just who made the leaks, which could have unfairly influenced the case.
“To discover the source of the leaks as well as the depth of nonpublic information disclosed, I request your office initiate an investigation as soon as possible,” wrote Issa.
Google FTC Decision Inspires Lawmaker to Seek Probe Into News Leaks
A spokesman in Wilson’s office told eWEEK that the FTC had received the letter, but would not comment further on it.
Gene Policinski, senior vice president and executive director of the First Amendment Center, a nonprofit educational group focused on First Amendment issues, said that requests for probes after press leaks have been around as long as governments have been in existence.
“Historically, there’s been a tension between government, which often doesn’t want anything to come out except for what they want to be known, and the press,” Policinski told eWEEK. “This is not a new issue.”
What is new today, though, is that the Obama administration has ramped up attempts to prosecute whistleblowers as tensions continue to build due to the added issues of national security and leaks, he said.
Often members of the media are getting their news leaks from government officials who are driven by their consciences rather than by orders, said Policinski.
When such leaks happen, the government typically goes after the people who do the leaking rather than pursuing the journalists who published the supposedly secret information, he said. “That’s the path our government has followed for over 200 years.”
At the same time, there is no federal shield law that protects a journalist from prosecution or other consequences if they publish information that is not made public, he said. “So as a journalist, if you are summoned before a federal panel your options are to make a decision on whether or not to disclose your sources and take your chances.”
Issa’s letter to the FTC is not a complete surprise in light of how things have changed since the Sept. 11, 2001, attacks on America in regard to national security, the press and news leaks, said Policinski.
“Clearly what we are seeing now is a renewed effort for government to police itself, with some truly draconian penalties” being faced by federal whistleblowers, such as a possible loss of federal pensions and increased criminal penalties, to try to stop such news leaks, he said.
“In the current climate, I don’t think this is a request just for show,” said Policinski. “This request is part of a pattern of really seriously trying to prosecute these folks.”
Could such an effort ultimately be successful and could the alleged leakers ever be caught and prosecuted in connection with the Google probe?
“First, they’d have to identify the leaker and if the reporter or reporters don’t identify them it makes it hard,” he said. “With electronic communications, however, it may be easier to track this information than it was in the past. In this climate, there’s an increased willingness to pursue people who leak information. It was perhaps more show in the past.”
Google FTC Decision Inspires Lawmaker to Seek Probe Into News Leaks
Among the key parts of the FTC agreement with Google is that the search company voluntarily will end some past business practices that could stifle competition in the markets for popular devices such as smartphones, tablets and gaming consoles, as well as the market for online search advertising, according to the agency. Under a binding settlement with the FTC, Google will allow competitors access “on fair, reasonable, and nondiscriminatory terms to patents on critical standardized technologies needed to make popular devices such as smartphones, laptop and tablet computers, and gaming consoles,” the FTC reported.
As part of that agreement, Google will not seek court injunctions to block competitors from using Google-owned patents that are essential to key technologies used in products developed and sold by competitors, according to the FTC. Many of those patents came from the company’s acquisition of Motorola Mobility in May 2012 for more than $12 billion, which included a large patent portfolio for technologies related to mobile and other consumer and business devices.
Beyond those steps, however, Google escaped FTC enforcement scenarios when it came to one of the biggest parts of the agency’s 19-month-long investigation into the company’s conduct—the allegations by competitors that the company had manipulated its search algorithms to harm vertical Websites and unfairly promote its competing vertical properties.
Now Google will have to see what happens in Europe with similar antitrust cases against the company in the European Union, where harsher consequences and actions are being considered.
Google was first notified by the FTC of a “formal review” of its business practices in June 2011 after similar reviews began in Europe. At that time, the European Commission launched an investigation into the company’s search practices after vertical search engines such as Foundem, eJustice.fr and Microsoft’s Ciao complained the company favored its Web services in search results on Google.com over theirs. They argued that this put them at a significant competitive disadvantage in the market.
The initial FTC review in 2011 began after the agency heard complaints from Microsoft, Expedia, TripAdvisor, Yelp and other Websites that Google promotes its Web services above those of competitors.
Google denied all such allegations at that time, noting that its search algorithms analyze Website quality and popularity based on links for placement as part of its PageRank system.
In July, Google reached a record $22.5 million settlement with the FTC to resolve charges that Google bypassed Apple Safari browser privacy settings that blocked cookies for their users. The settlement was criticized by the Competitive Enterprise Institute, an industry group, as “a dangerously overbroad precedent that will chill Internet innovation and hurt online startups,” the Institute said in a statement at that time.