A federal judge's ruling late Friday in a key privacy case demonstrates the need to implement tough "Do Not Track" rules and to take decisive action on the antitrust front against Google.
Judge Susan Illston approved the Federal Trade Commission's $22.5 million settlement with the Internet giant for hacking past privacy settings on Apple's Safari browser in U.S. District Court in San Francisco, in a deal that Consumer Watchdog had argued was insufficient in light of Google's wanton privacy violations.
"The Court also grants additional deference where the decree has been negotiated by a governmental agency that is an expert in its field," Judge Illston said in her decision.
I was disappointed with the ruling, but think we made important points that will affect how similar cases are dealt with in the future. Drawing the public's attention to this case was tremendously important. I'm glad we did it.
Attorney Gary Reback of Carr & Ferrell represented us as an amicus curiae or friend of the court. Frankly, I expected an uphill battle with Google and the FTC aligned against us. Together the government and Google defended the deal that had been negotiated in secret.
Judge Illston did not surprise when she began the hearing by saying her "preliminary view" was to approve the settlement. We opposed the deal for three basic reasons:
1. The settlement allows Google to deny that it did anything wrong.Reback made the arguments in two excellent briefs before the hearing. Both are well worth reviewing. The first is particularly valuable for the way it lays out Google's history of privacy invasions. Read the original amicus brief here and our response brief here.
2. The $22.5 million fine -- a lot for you and me -- is insufficient for a company like Google with revenue of $40 billion a year. Really it's just chump change. Google makes $22.5 million in about five hours. Google was liable for fines totaling $16,0000 per day per violation. If you consider each wrongly placed cookie a violation -- and you should -- Google quickly reaches a liability in the billions. A fine of that magnitude would have caught Google executives' attention.
3. The injunctive relief in the settlement is insufficient. Google is allowed to keep the ill-gotten data it obtained by hacking around the Safari privacy settings, which is the browser used on iPhones and iPads.
As the hearing began Judge Illston said there was no need to require Google to admit it did anything wrong. She said she had no problem with the amount of the fine. She did, however, have questions questions about allowing the Internet giant to retain the wrongfully acquired data.
The government and Google's attorneys tried to make the case that the Google wouldn't use the information, so keeping it was irrelevant. I thought Reback effectively rebutted their position, but then, you'd expect me to think that.
By the end of the day, though, Judge Illston had ruled against us. As Reback told The Associated Press' Mike Liedtke, after the hearing, a consent decree ‘‘is not a good way to police Google,"
What the decision does is allow Google executives to buy their way out of trouble with what for them is pocket change and then deny doing anything wrong. As our briefs made clear, Google has demonstrated an ability to out maneuver government regulators repeatedly and ride roughshod over the privacy rights of consumers. Google continues to be disingenuous about its practices.
That's why the decision makes two things clear: First, if consumers are to have any privacy at all and be able to control what data is gathered about them, tough Do Not Track rules must be implemented. Second, as we told the FTC last week, the Commission needs to file an antitrust suit against Google and take it to trial in U.S. District Court. The FTC should seek to force Google to divest its Motorola Mobility subsidiary, separate search from advertising, and undergo the same sort of regulation as a public utility.
The Federal Trade Commission’s role in keeping Google’s abuses in check is essential. The Internet is too important to allow an unregulated monopolist to dominate it.
Posted by John M. Simpson. John is a leading voice on technological privacy and stem cell research issues. His investigations this year of Google's online privacy practices and book publishing agreements triggered intense media scrutiny and federal interest in the online giant's business practices. His critique of patents on human embryonic stem cells has been key to expanding the ability of American scientists to conduct stem cell research. He has ensured that California's taxpayer-funded stem cell research will lead to broadly accessible and affordable medicine and not just government-subsidized profiteering. Prior to joining Consumer Watchdog in 2005, he was executive editor of Tribune Media Services International, a syndication company. Before that, he was deputy editor of USA Today and editor of its international edition. Simpson taught journalism a Dublin City University in Ireland, and consulted for The Irish Times and The Gleaner in Jamaica. He served as president of the World Editors Forum. He holds a B.A. in philosophy from Harpur College of SUNY Binghamton and was a Gannett Fellow at the Center for Asian and Pacific Studies at the University of Hawaii. He has an M.A. in Communication Management from USC's Annenberg School for Communication.