op-ed

State Attorneys General Can Expose Google’s Pervasive Anti-Consumer Practices

America’s state attorneys general have Google’s number.

Google benefits more people in more ways than any other company, but state attorneys general have learned from experience that the multinational technology company also harms more consumers in more ways than any other company.

Missouri Attorney General, Josh Hawley, a Republican, has announced an antitrust probe into Google, given its unaccountable dominant control over Missourians’ private data, others’ property and others’ commercial opportunity.

This probe follows a bipartisan call in 2016 for the Federal Trade Commission to reopen its antitrust investigation of Google, by D.C. Attorney General Karl Racine, a Democrat, and Utah Attorney General Sean Reyes, a Republican.

Expect more Democrat and Republican state attorneys general to bring more consumer protection accountability to Google going forward, because state attorneys general have a long history of bipartisan efforts to confront Google’s many consumer harms.

In June, when the European Union fined Google $3 billion for abusing its search dominance, most state and federal elected officials had to notice that no U.S. elected official came to Google’s public defense.

Combine that exposing of bipartisan disinterest in publicly defending Google’s bad behaviors with the long bipartisan track record of state attorneys general of confronting Google’s bad behaviors discussed below, and one can see why state attorneys general may be the leading accountability risk for Google.

In 2012, Google refused to meet with a bipartisan group of 36 state AGs to hear their concerns that Google substantially changed its privacy policy in a way that harmed consumers because Google provided no reasonable way for Google Android users to opt out of the new Google data collections as was required by the FTC’s 2011 privacy enforcement consent decree with Google.

Also in 2012, the Texas AG, supported by a bipartisan group of state AGs, filed suit in court to compel Google to comply with a Texas subpoena as part of Texas’s and other states’ antitrust investigation into Google’s alleged manipulation of search results for anti-competitive purposes.

In 2013, a bipartisan group of 38 state AGs fined Google a record $7 million for mass, clandestine collection of Americans’ WiFi data for commercial purposes without consumers’ knowledge or consent. While Google committed to destroying the data it collected, it was discovered later that Google didn’t.

In 2013, the National Association of Attorneys General complained that Google was not abiding by the terms of its $500 million DOJ criminal non-prosecution agreement and penalty for profiting from illegal prescription drug sales to consumers for several years and after repeated warnings from law enforcement. Speaking for the Association, Mississippi Attorney General Hood said “on every check we have made, Google’s search engine gave us easy access to illegal goods, including websites which offer dangerous drugs without a prescription, counterfeit goods of every description. This behavior means that Google is putting consumers at risk and facilitating wrongdoing, all while profiting handsomely from illegal behavior.”

In 2016, a bipartisan group of 40 State AGs successfully petitioned a U.S. Appeals Court to overturn a Federal injunction Google got to quash a Mississippi State AG subpoena into Google’s alleged facilitation of “dangerous and illegal activities through its online platforms.” For over a year, a Google-requested Federal court injunction effectively neutered all State AGs from investigating or prosecuting Google for most any alleged Google violation of most any State consumer protection law.

In 2017, Google was the well-known leader and bankroller of online commercial opposition to pending Senate and House bills to stop the online enablement of child sex trafficking. For several years, a bipartisan group of State AGs have been thwarted from successfully prosecuting Backpage, the most notorious child sex trafficking site responsible for an estimated 70% of child sex trafficking in the U.S., because of a Google-protected, immunity from liability provision in Federal law, that Google depends on as its de facto Monopoly® “Get out of Jail Free” card in court.

Given Google’s telling track record of aiding and abetting in activities that harm consumers for profit, and given Google’s apparent heavy-handed and successful pattern of obstructing state justice, expect many more state attorneys general to participate in a variety of bipartisan Google law enforcement investigations to protect their state’s consumers going forward.

State AGs are elected and accountable to protect consumers under their states’ laws. In both parties, state AGs often become future governors, senators and representatives.

State AGs appreciate it is common-sense law enforcement, good government, and smart bipartisan politics, to hold bad actors accountable, to stand up to abuse of power, and to enforce the law to protect consumers with courage and determination.

Watch the state AG’s approach to Google. These state officials will determine if Google remains above the law, or not.

Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google.