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“Kicking the Tires” is not “Looking Under the Hood”
Posted By Frank Pasquale On January 11, 2013 @ 10:28 am In Antitrust,Cyberlaw,Google & Search Engines,Government Secrecy,Political Economy,Privacy (Electronic Surveillance),Technology | 2 Comments
Celebrated in the tech press only a week ago, the FTC inaction (and non-explanation of its inaction ) with respect to search bias concerns is already starting to curdle. The FT ran a front page headline titled “Europe Takes Tough Stance on Google .” Another story included this striking comment  from the EU’s competition chief:
Almunia insists that the Federal Trade Commission decision will be “neither an obstacle [for the European Commission] nor an advantage [for Google]. You can also think, well, this European authority, the commission, has received a gift from the American authorities, given that now every result they will get will be much better than the conclusions of the FTC,” he said with playful confidence. “Google people know very well that they need to provide results and real remedies, not arguments or comparisons with what happened on the other side [of the Atlantic].”
In response to allegations of search bias, Google has essentially said, “Trust us.” And at the end of its investigation into the potential bias, the FTC has essentially said the same . One public interest group has already put in a FOIA request for communications between Google and the FTC. Consumer Watchdog has requested a staff report  that was reported to have recommended more robust action. Will Google, an advocate of openness  in government and the internet generally, hold firm to its professed principles and commend those requests?
I doubt it—and sadly, perhaps even if it did, the FTC might not want to see further discussion of its investigation. As the N.Y. Times reports , “the F.T.C. did not detail how it defined harm or what quantitative measures it had used to determine that Google users were better off.” Nor did it appear to consider whether small consumer gains now from, say, an ultra-clean interface of purely Google results, might disserve consumers later who want more diverse offerings.
The Director of the Bureau of Economics has responded to these concerns, assuring the Times that “We kick the tires hard on all of the data we receive.” But the 4 page findings of the Commission don’t even give us a sense of the hypotheses they were testing, or even the full legal theory of the case. If one of my students came to me at the end of a seminar with a four page report elaborating on the idea that “there really wasn’t much of a problem” in the area he had investigated, he would get a failing grade. Certainly a federal agency with staff, concluding a 20-month investigation, can do better than this.
The Director’s comment is unintentionally revealing, however. In my past work  on consumer protection and competition regulation, I have insisted that agencies be able to “look under the hood” of highly advanced technologies like the algorithms at the heart of the Google search engine. This might involve hiring computer scientists, programmers, and other experts capable of understanding exactly how algorithms changed over time, and how directives from top management might influence what is always portrayed as a scientific, technical, and neutral process . “Kicking the tires” is not a metaphor suggestive of expert analysis. Rather, it reminds me of a skeptical consumer trying, as best he can, to use whatever signals are available to a layman to make an assessment ultimately beyond his competence. Until the FTC releases more information on how it assesses accusations like search bias, we may need to consider its investigative capacity as little better than that of the consumers it ostensibly protects.
ProPublica recently ran a story  titled “How a Lone Grad Student Scooped the Government and What It Means for Your Online Privacy,” focusing on the FTC. At this point, it is unclear whether the technical shortcomings that hamstring the FTC’s regulation of privacy have also impeded its antitrust investigations, or if the problems lie deeper, in the Borkian legacy of U.S. competition law . Only further information from the FTC itself can allow us to make that crucial distinction.
X-Posted: Madisonian .
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URLs in this post:
 non-explanation of its inaction: http://madisonian.net/2013/01/03/google-antitrust-the-ftc-folds/
 Europe Takes Tough Stance on Google: http://www.ft.com/intl/cms/s/0/2b5bead6-5b3c-11e2-8d06-00144feab49a.html#axzz2Hg9VCq7Q
 this striking comment: http://www.ft.com/intl/cms/s/0/42a827b2-5b24-11e2-8d06-00144feab49a.html#axzz2Hg9VCq7Q
 requested a staff report: http://news.cnet.com/8301-1023_3-57562841-93/watchdog-seeks-ftc-staff-opinion-on-google-antitrust-case/
 advocate of openness: http://www.guardian.co.uk/technology/blog/2008/feb/04/hellogooglecanyouspellhyp
 reports: http://www.nytimes.com/2013/01/07/technology/googles-rivals-say-ftc-antitrust-ruling-missed-the-point.html?adxnnl=1&src=recg&adxnnlx=1357862250-h7hpJ33iWRSMrX4pxGOlXg&pagewanted=print&_r=0
 past work: http://www.law.northwestern.edu/lawreview/v104/n1/105/LR104n1Pasquale.pdf
 scientific, technical, and neutral process: http://jcmc.indiana.edu/vol12/issue3/vancouvering.html
 ran a story: http://www.propublica.org/article/how-a-grad-student-scooped-the-ftc-and-what-it-means-for-your-online-privac
 Borkian legacy of U.S. competition law: http://www.dissentmagazine.org/blog/borking-antitrust-google-secures-its-monopoly
 Madisonian: http://madisonian.net/2013/01/11/kicking-the-tires-is-not-looking-under-the-hood/
 : http://www.consumerwatchdog.org/resources/ltrftcgoog010813.pdf
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