Texas Attorney General 'Investigating' Google, With Little Basis In Reality

from the not-this-again dept

Tue, Sep 7th 2010 4:51am — Mike Masnick

I'm beginning to think we need a series of posts on "State Attorneys General Gone Wild." We've discussed the insider's view from Topix' Chris Tolles about how state attorneys general grandstand against tech sites, despite having absolutely no legal basis. We've seen it happen over and over and over and over and over again (most recently with Craigslist -- a favorite target).

Late Friday, the news broke that Texas' AG was "investigating" Google for antitrust violations, using the trio of companies that have been mentioned for a while now -- Foundem, MyTriggers and TradeComet -- who have all been making a stink about how Google is somehow violating antitrust laws because those three sites don't like their rankings in Google. All three claim that they're competitors to Google, and Google is somehow trying to hold them down. This is, frankly, ridiculous. As has been explained over and over again, rankings are an opinion, protected by free speech rights. And, furthermore, if Google was really trying to keep competitors down, wouldn't it actually focus on players that actually matter in the space? Besides, if you look on Google, you can easily find highly ranked links to all sorts of Google competitors. It's also worth mentioning, of course, that all three of these companies have some sort of connection to Microsoft.

So, once again, we have some silly grandstanding, and it's not at all clear what Texas has to do with any of this. None of the companies are based in Texas, and Google's not breaking any laws here. It seems like just more grandstanding by a state AG against Google. It'll be interesting to see what happens, because unlike sites like Topix and Craigslist, Google might actually have enough clout to not just give in and settle.

Meanwhile, Danny Sullivan does a nice job summarizing the ridiculousness of this (that's the link above):

My view is the arguments are generally absurd. None of these companies are large enough to pose any threat to Google, to the degree it would be compelled to take such stupid action. Moreover, if Google's going to act to block a competitor, I'd expect it to pick bigger targets -- say like Microsoft.

And for the legal view, we turn to Eric Goldman who sums it up with the title "Are You Kidding Me???":

I'm always amazed by people who forget that Google's organic search and ad ordering are editorial processes fully protected by the First Amendment. Part of this myopia is Google's own fault. It has so successfully sold itself as a technology platform that we forget about the editorial processes embedded in its core business. As a result of those judgments, any legal challenges to Google's search practices runs squarely into serious First Amendment considerations.

I'm also intrigued by the potential role of 47 USC 230(c)(2), a federal law which basically insulates websites' filtering decisions from any state law causes of action (except state wiretapping laws and possibly state IP claims). The interplay between 230(c)(2) and antitrust claims is hardly clear, but it's possible that the Texas AG's efforts are completely preempted by the federal statute.

Goldman also wonders what the actual result would be if Texas AG Greg Abbott "succeeds" in forcing Google to change its ranking process: "Let's assume Texas can actually establish a case against Google's algorithms. Then what? Will Greg Abbott start telling Google how it should run its search engine? It's hard to imagine that the cure will be better than the disease."

Finally, and in a way that no one else can, the folks over at Groklaw has an astoundingly detailed look at how ridiculous this claim is.

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Filed Under: antitrust, greg abbott, texas
Companies: foundem, google, microsoft, mytriggers, tradecomet

21 Comments

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Nick Coghlan (profile), 7 Sep 2010 @ 4:51am

Groklaw
I sometimes wonder if tech lawyers these days live in fear of drawing PJ's ire. If she gets motivated to do any digging of her own, following up with whatever the rest of the crowd over on Groklaw are almost certain to ferret out in the comments, it becomes an absolute treasure trove for the lawyers on the other side of the case.
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ofb2632 (profile), 7 Sep 2010 @ 6:25am

Google should just bankrupt Texas and be done with it. Both Texas and Arizona have been getting more and more extreme lately.
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- Phil1957, 7 Sep 2010 @ 7:16am
  
  Re:
  There is hardly anything extreme about Arizona. What is extreme is the Federal Government suing a State over a matter that anyone knows the State has an inherent rights to do.
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  - Anonymous Coward, 7 Sep 2010 @ 7:45am
    
    Re: Re:
    Phil 1957 wrote:
    "that anyone knows the State has an inherent rights to do"
    
    OK, now that we've established that you are neither a lawyer nor an english teacher, pray tell, what is your expertise on this topic?
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  - Anonymous Coward, 7 Sep 2010 @ 8:09am
    
    Re: Re:
    Hi. The Constitution would like a word with you.
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    - PhiI1957, 7 Sep 2010 @ 8:35am
      
      Re: Re: Re:
      The Constitution isn't some static document with a given set of statements or even a living document which can be modified to change with the times. THE CONSTITUTION IS WHATEVER I WANT IT TO BE!!!
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mjb5406 (profile), 7 Sep 2010 @ 6:45am

What Does Anyone Expect?
This is Texas... I think the term "altered reality" got it start there. You have a governor who wants to secede from the US, a school board who changed history in the textbooks because they disliked what they read... what do you expect?
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- Phil1957, 7 Sep 2010 @ 7:19am
  
  Re: What Does Anyone Expect?
  States rights is hardly "altered reality". If you knew anything about the history of the United States you would know that the founding fathers intended States to have more authority than the Federal Government. What is "altered" from what was intended in "history" is your view of those same views now.
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  - Anonymous Coward, 7 Sep 2010 @ 8:45am
    
    Re: Re: What Does Anyone Expect?
    Hint: The founding fathers didn't support a state's right to secede.
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  - Bengie, 7 Sep 2010 @ 10:15am
    
    Re: Re: What Does Anyone Expect?
    States rights is hardly "altered reality".
    
    Yeah, because states have a right to ignore the constitution. Have fun with that.
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Ryan Jones, 7 Sep 2010 @ 6:52am

the reason is simple
There's a simple reason why none of these sites rank well in Google search results: Users.

All of these sits are search engines. If I went to Google and typed in "lcd televsion" then clicked the top result and got another page of search results from somebody else, I'd be an unhappy user.

Users don't want more search results - so Google doesn't show pages of search results.

They've had this policy since day 1. It's even clearly spelled out in their webmaster guidelines.

Users want a site that's relevant to their search. More search results aren't relevant.
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Sean T Henry (profile), 7 Sep 2010 @ 7:17am

The first one is a shopping search in the UK the second one is also a shoping search and the third is one page with no info and 2 links one that does not even work. The last one TradeComet I do not think you could even find if you tried unless you search for the name like I did. Good news for those pages you got your first page view in years.
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Phil1957, 7 Sep 2010 @ 7:22am

Having made the posts I made in reply to others, I do not believe the AG has a leg to stand on in this case. He is a very respected lawyer, with a very successful past however, and I do not know the basis for what he is doing. But in general, I wish AG's would do their jobs and not go for headline lawsuits. If AG Brown in CA would so his job here in CA and defend that which he is responsible to defend CA would be better off. But instead he is allowing his personal beliefs to get in the way of what he is paid to do. This could be the same thing in TX.
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chris (profile), 7 Sep 2010 @ 8:12am

i can't wait!!
if Texas AG Greg Abbott "succeeds" in forcing Google to change its ranking process: "Let's assume Texas can actually establish a case against Google's algorithms. Then what? Will Greg Abbott start telling Google how it should run its search engine?

i can't wait for this to go through, no matter what you type into google for your search criteria you'll get your local baptist church website as the first result, and an IP law attorney specializing in patents as the second.
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Anonymous Coward, 7 Sep 2010 @ 8:57am

PhiI1957 wrote:

"THE CONSTITUTION IS WHATEVER I WANT IT TO BE!"

A lot of idiots, er... people, seem to think so.
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Anonymous Coward, 7 Sep 2010 @ 3:01pm

Mike, you left out the best part. myTriggers' problems were caused by their servers overheating. They collected insurance money on it and everything. That's not stopping them from trying to get even more money from Google, of course.

@ofb2632:
Hey! That's not... oh, who am I kidding? Nobody should live here. It's hot, humid, and a freaking hurricane magnet. Bankrupt away, Google.
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Paul Alan Levy (profile), 8 Sep 2010 @ 2:04pm

My take on the legal issues here is rather different
Whatever one might want to say about the likelihood that the Texas AG will find anything actionable, I disagree that either section 230, or the First Amendment, or other legal considerations discussed in this post would bar the investigation or a subsequent legal proceeding should that investigation show the misuse of market power.

I discuss the legal issues here: http://pubcit.typepad.com/clpblog/2010/09/is-google-immune-from-the-texas-attorney-generals-antitrus t-investigation.html
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mikeyboy, 11 Sep 2010 @ 4:15pm

Hey Mike Masnick, how good does Eric Goldman's cock taste in your big lipped mouth? You are a scummy piece of shit only equalled by your fuck buddy Eric Goldman. Soon, neither of you will have a job. You are both arrogant, vicious scum and gay on top of it!
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Virginia Hoge, 16 Sep 2010 @ 8:20am

techsugar
Mike Masnick has to be one of the biggest corporate sell-out journalists around. He attacks valid, needed investigations - like of Topix - with pure hyperinflated crap.

Topix NEEDS investigating and Google needs to be stayed on top of as well. The internet has NO regulation, duh, and therefore needs the oversite of the media more than ever.

This site is totally bogus. It calls itself TechDirt, when in fact all it provide is sugar, flattery and protection, for its media hook-ups. TechSugar better get its act together and provide valid coverage of internet media companies and not flattering, uninformative, inaccurate dribble.
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bil (profile), 21 Sep 2010 @ 12:31pm

Google Contact
Is ther anyone that might know a contact a Google???
We need to talk with division manager or a VP. We have a billing errors problem and can only contact collections.

Any help would be great..

thx

-----Original Message-----
From: Google Collections [mailto:threshold-us (at) google.com]
Sent: Monday, September 20, 2010 5:30 PM

Hello xxxxxxxxxxxxxxxxxx,

Thank you very much for your patience as we were attempting to gather the necessary information for your AdWords Accounts which we have found outstanding.

I have attached a statement of all AdWords Accounts we are currently are aware of and their corresponding unpaid invoices.

If we encounter other accounts, they will be stopped from running and you will be held responsible for those balances as well.

Once all outstanding balances are paid, in full, you will be allowed to run all accounts but they will be closely monitored for about 6 months to make sure there are no declines, large outstanding balances accrued, etc.
Then after this point, you will be able to monitor your own accounts as you wish.

Please see my attachment showing all AdWords Accounts we are currently aware of. As you may notice at the bottom of the attachment it shows a few different Total Outstanding Balances:

- If you would like to continue to advertise with Google, you are responsible for paying the entire balance (including written off invoices)
of: $136,596.40.

- If you would like clear your current debt with Google and prevent your accounts from going to an Outside Collections Agency, we will only hold you responsible for paying the outstanding balance that has not been written off (only the open invoices): $23,469.71. If you decide to only pay this amount, you will not be allowed to do future advertising with Google.

Let me reiterate, these above totals may not be exactly correct if there are more accounts that we encounter.

Please let me know what you would like to do regarding whether or not you wish to continue advertising and which balance you will be paying.

We can extend to you, at most, a three (3) month payment plan for your balance. This payment plan would be monthly payments of ($total balance/3). In the third month payment, you will be responsible for that monthly payment ($total balance/3) + any more accrued charges we may encounter.

We expect these 3 payments to be received by October 20, 2010, November 20, 2010 and December 20, 2010.

Thank you again for your continued patience as these accounts were in review. Please let me know what you decide.
--
Kind Regards,

Ariana Freschet
Collections Specialist
Google Inc.
Phone: (650) 214-5087
Fax: (650) 253-8616
Email: ariana.f (at) google.com
Reporting to: Trent Walker at trent (at) google.com
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Virginia Hoge, 7 Oct 2010 @ 1:36pm

The good in Topix
this is overdue, to Topix, who I have complained about.

The good in Topix

http://open.salon.com/blog/virginia888/2010/10/07/the_good_in_topix
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