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Taming Google

Several years ago, in a Washington Times article, I proposed that outlets such as Facebook, Twitter and Google be treated as “common carriers.” Common carriers, such as airlines and railroads, are not allowed to discriminate against customers based on race, color, creed or political viewpoint.  The same should apply to internet giants.

Section 230 of the Communications Decency Act (CDA) frees these corporate giants of certain liability in return for allowing all to post online. It also provides, according to Internet Association.org,  the right to exclude users under certain conditions. Having violated the provision mandating fair use by all, 230 should be repealed.

There are other solutions to the growing power of internet giants to dominate the national conversation and engage in practices intended to exclude the growth of competing services.

Texas Attorney General Ken Paxton recently announced that his state  is leading a multistate coalition in a lawsuit against Google for multiple violations of federal and state antitrust and consumer protection laws, including anticompetitive conduct, exclusionary practices and deceptive misrepresentations in connection with its role in the multi-trillion-dollar online display advertising industry. Google’s monopolization of online-display advertising includes an anticompetitive agreement with Facebook, making misrepresentations to users and customers, and suppressing competition.

According to a release from Paxton, Google competes directly against the buyers and sellers they separately represent—all while operating the largest exchange on which these ad products are bought and sold. Google’s exchange trades in billions of ad impressions a day.

“Google is a trillion-dollar monopoly brazenly abusing its monopolistic power, going so far as to induce senior Facebook executives to agree to a contractual scheme that undermines the heart of competitive process. In this advertising monopoly on an electronically traded market, Google is essentially trading on ‘insider information’ by acting as the pitcher, catcher, batter and umpire, all at the same time. This isn’t the ‘free market’ at work here. This is anti-market and illegal under state and federal law,” said Attorney General Ken Paxton. “Google’s monopolization of the display-advertising industry and its misleading business practices stifle innovation, limit consumer choice and reduce competition. Texas and its coalition of allied states bring this action to lift the veil on Google’s secret practices and secure relief to prevent it from engaging in future deceptive and misleading practices.”

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This lawsuit alleges that Google monopolized or attempted to monopolize products and services used by advertisers and publishers in online-display advertising. The complaint also alleges that Google engaged in false, misleading and deceptive acts while selling, buying and auctioning online-display ads. These anticompetitive and deceptive practices demonstrably diminished publishers’ ability to monetize content, increased advertisers’ costs to advertise and directly harmed consumers.

The Office of the Attorney General hired The Lanier Law Firm and Keller Lenkner, LLC to aid the State of Texas in its claims against Google, a subsidiary of Alphabet Inc. OAG’s contracts with these law firms comply with Chapter 2254 of the Texas Government Code, which requires that outside counsel in cases like this be compensated by a “lodestar” method derived from their hourly billing rates.

The key points of the lawsuit include:

  1. The States of Texas, ArkansasIdaho, Indiana, Mississippi, Missouri, North Dakota, South Dakota, Utah, and the Commonwealth of Kentucky, by and through their Attorneys General (collectively, the “Plaintiff States”), bring this action against Google LLC (“Google”) under federal and state antitrust laws and deceptive trade practices laws and allege as follows:
  2. As internal Google documents reveal, Google sought to kill competition and has done so through an array of exclusionary tactics, including an unlawful agreement with Facebook, its largest potential competitive threat, to PDQLSXODWH advertising auctions. The Supreme Court has warned that there are such things as antitrust evils. This litigation will establish that Googe is guilty of such antitrust evils, and it seeks to ensure that Google won’t be evil anymore.
  3. Google has repeatedly and brazenly violated antitrust and consumer protection laws. Its modus operandi is to monopolize and misrepresent. Google uses its powerful position on every side of the online display markets to unlawfully exclude competition. It also boldly claims that “we’ll never sell your personal information to anyone,” but its entire business model is targeted advertising—the purchase and sale of advertisements targeted to individual users based on their personal information. From its earliest days, Google’s carefully curated public reputation of “don’t be evil” has enabled it to act with wide latitude. That latitude is enhanced by the extreme opacity and complexity of digital advertising markets, which are at least as complex as the most sophisticated financial markets in the world.

Illustration: Pixabay