Antitrust Claims Against Google Are RIDICULOUS Because Consumers Are Not Getting Harmed

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Darren S. Tucker Attorney and former Federal Trade Commission adviser
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In the physical world, recycling is usually a good thing: By finding a new use for what was once junk, we can benefit the environment and save energy too. But when professional critics merely reuse debunked allegations of wrongdoing, the policy environment gets worse, not better.

Unfortunately, this latter type of recycling describes complaints by the founders of the price comparison website Foundem and their lawyer Gary Reback in a February 20 New York Times Magazine article. Foundem and Mr. Reback primarily complain about something called “search bias.” Each time Google improves its search engine to point to new websites or to generate its own direct answers to queries (like showing a map when you search for an address), a small number of other websites such as Foundem have complained that they lose user traffic and claim that Google’s search algorithm has become “biased” against them. The problem with these claims is that consumers benefit from these product improvements, and no website has a right to users’ clicks tomorrow just because the site got their clicks yesterday.

I am well aware of these “search bias” complaints, in part due to my own time as an attorney at the Federal Trade Commission. While I was there, the FTC, along with several state attorneys generals including California, New York, and Texas, conducted a wide-ranging investigation of Google’s search and mobile practices. The FTC collected over nine million pages of documents, testimony from Google’s executives and critics, and extensive search data showing how Google’s design changes were shaped by search engine traffic and user behavior.

After all of this effort, the FTC’s professional staff, including separate teams of lawyers and economists, unanimously recommended closing the search bias investigation, and all five FTC Commissioners (two Republicans and three Democrats) agreed to do so. The decision to close this investigation was unanimous because the evidence was clear: Google’s search algorithm was not being “biased.” It was constantly being improved to benefit consumers.

Contrary to the claims of Foundem and Mr. Reback, the FTC found that Google’s changes were designed “to improve the quality of its search results” and “likely benefited consumers.” While this conclusion should be unremarkable to anyone that uses Google, it’s significant legally because the goal of the antitrust laws is to promote consumer welfare rather than to protect particular websites or companies. The critics never come to grips with this point.

The critics point to a recent contrary decision by the European Commission to claim that the FTC reached the wrong result. But it is actually the EC, not the FTC, that is the outlier here. In addition to the FTC, all five state AGs who reviewed Google’s practices, falling across the political spectrum, rejected the allegations. Antitrust authorities in Canada and Taiwan, plus courts in the US, UK, Germany, and Brazil, have rejected similar allegations, often when they have been made by Foundem’s owners, which the Times reveals are now anti-Google paid consultants who would have a financial interest in more antitrust complaints against Google.

Recent industry developments reaffirm that the FTC got it right. At the time of the FTC investigation, people were still accessing most internet content through desktop browsers. Now, a robust app-based economy and new interconnected devices such as the Amazon Echo and onboard car displays like Apple CarPlay provide increasing ways for consumers to access digital content rather than rely on search engines. For example, consumers are increasingly using the Amazon and eBay apps to search for products; today more than half of all product searches by U.S. users start with those two companies. For local search, users access Yelp through its mobile app. Since the FTC closed its investigation, Yelp’s user base has grown by almost 80 percent.

The digital world keeps changing, and to keep up Google needs to be able to keep changing with it, improving its algorithm and pointing users to new sites and better information. That’s not bias, that’s progress. It’s time for critics to stop recycling arguments that would only benefit a handful of companies, at the expense of consumers. “Search bias” claims belong in the wastebasket, not the recycling bin.

Darren S. Tucker, a partner at Vinson & Elkins LLP, represents Google and was previously an adviser to FTC Commissioners J. Thomas Rosch (R) and Joshua D. Wright (R).

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.