Google faces privacy, antitrust probe by Missouri AG

13 November 2017. By Amy Miller and Mike Swift.

Missouri Attorney General Josh Hawley, a Republican running for a seat in the US Senate, issued a subpoena to Google on Monday as part of an investigation into whether the tech giant is violating the states's consumer privacy and antitrust laws.

In what will be the only known active antitrust investigation of Google by a US regulator, Hawley's office is examining what data Google's search engine collects from users and whether the company manipulates search results at the expense of competition, he said at a press conference.

“This is not optional,” Hawley said. “It is not a request. It is a legal obligation they comply.”

The eight-page civil investigative demand sent by Hawley, obtained by MLex, contains 54 questions or demands to produce documents and communications. Google’s deadline to produce the materials is Jan. 22.

The Missouri attorney general appears to be exploring whether he can build off the Federal Trade Commission's antitrust investigation of Google that concluded at the start of 2013. The CID requires Google to produce all documents that the company or its lawyers provided to the FTC as part of that antitrust probe.

On the privacy side, the attorney general’s office asked Google to produce all documents and communications relating to a product code-named “CryptDB,” an algorithm that reportedly allows Google to extend its online tracking abilities to the offline world by matching up in-store credit card spending with online searches.

CryptDB was the subject of a complaint to the FTC this year by the Electronic Privacy Information Center, a privacy watchdog group, which said Google could be misrepresenting its statements that it keeps online tracking information and credit card transactions separate.

“Google claims that it is unable to release details about the algorithm because of a pending patent application. But Google has revealed that the algorithm is based on CryptDB, described in a 2011 [Massachusetts Institute of Technology] research paper funded by Google and Citigroup,” EPIC said in that complaint.

EPIC Executive Director Marc Rotenberg didn't comment on Missouri's investigation directly, but pointed to the organization's blog post, which noted that Senator Richard Blumenthal, a Democrat, had launched a similar investigation of Google when he was Connecticut's attorney general that resulted in a $7 million settlement with the search engine.

Hawley also appears to be probing how Google defines the consumer information it collects. His CID asked the online ad giant to disclose information it collects that it defines in its privacy policy as "personal information," as "sensitive personal information," and as "non-personally identifiable information."  

Hawley's announcement comes as US politicians are questioning whether behemoths such as Google and Facebook should be more tightly regulated in the wake of revelations that Russia used social networks to try and influence the 2016 presidential election. And as big tech companies like Amazon become increasingly powerful economically, many are also questioning whether they’re violating antitrust laws.

Hawley said he wants to determine whether Google is violating Missouri’s antitrust laws by manipulating search results to benefit its own products, pointing to the European Union’s record-breaking $2.7 billion (2.4 billion euros) antitrust fine against the search engine this summer.

“If the company is using anticompetitive tactics to stifle competition, this needs to end,” Hawley said.

Hawley criticized the FTC during the Obama administration for launching privacy and antitrust investigations into Google but never taking any enforcement actions, essentially giving Google a “free pass,” he said.

“The bottom line is Missouri is not going to give Google a free pass,” he said.

Hawley, however, neglected to mention that Google did pay a $22.5 million fine to the FTC in 2012 to settle allegations that it misrepresented its privacy assurances to users of Apple’s Safari Internet browser.

Missouri will also look into how honest Google is being about the massive amounts of consumer data it collects, uses, and sells, and whether those data practices violate Missouri’s consumer protection laws, he said. There must be a way for consumers to opt out of data collection if they want to, Hawley said.

The recent high-profile data breaches at credit reportign agency Equifax have also highlighted how important protecting consumers' information is, he said.

“We know they are collecting massive amounts of information about consumers,” he said. “Our own investigation suggests they may be collecting much more than they are telling consumers, and there’s no meaningful opt out.”

Hawley will also investigate whether Google, as Yelp has alleged, is illegally taking copyrighted content and featuring it in its own search results, a practice known as 'scraping.' In September, Yelp wrote a letter to the FTC alleging that Google violated its 2012 settlement agreement by allegedly scraping photos from Yelp reviews for its own search results.

In his investigation of data that Google may “scrape” content from other services, the attorney general appears to be probing a wide array of Google services.

His subpoena requires Google to produce all policies relating to the collection of data and images for Google Places, Google Flights, Google Hotels, Google Advisor and Google Compare. "Advisor" and "Compare" are now-defunct services that allowed users to compare differing services, generating leads for advertisers in the process.

In October, Hawley announced that he intends to challenge Democratic incumbent Claire McCaskill in 2018 for her seat in the US Senate. On Monday he downplayed questions about whether his investigation of Google is tied to his run for the Senate, saying it’s his job to take down bad actors, whether its corrupt public officials or drug companies that lie about opioid abuse.

“It’s our job to get to the truth, and we will,” Hawley said.

A Google spokesman said the company has yet to be served with the subpoena.

"We have not yet received the subpoena, however, we have strong privacy protections in place for our users and continue to operate in a highly competitive and dynamic environment," said company spokesman​ Patrick Lenihan.

	Eliot Gao