FTC Should Address Google-DoubleClick Privacy Issues
While the FTC cannot confirm that it has an ongoing investigation, it seems pretty clear from some public statements (See Steve Lohr's article in today's NY Times - "Google Deal Said to Bring U.S. Scrutiny") that it is the FTC -- and not the Department of Justice -- that has taken the lead in reviewing Google's merger with DoubleClick. Some experts have suggested that privacy will not play a role in the FTC's investigation, but CDT disagrees. Consumer protection issues are not considered as factors in whether the DOJ or the FTC is chosen to review a merger. Rather, the agency that can demonstrate the most expertise on the competition issues at stake is usually the one selected. However, once the Commission is selected, Section 5 of the Federal Trade Commission Act can be part of the FTC's review. All of the privacy actions that the Commission has brought to date have been under Section 5 of the FTC Act. The DOJ and FTC 1992 Horizontal Merger Guidelines specify that "mergers subject to section 5 are prohibited if they constitute an 'unfair method of competition.'" The FTC has used this power to investigate other consumer protection concerns, such as those that arose out of theAOL/Time Warner Merger in 2000. As I mentioned in an earlier post on this topic, CDT has been promoting the FTC's involvement in online advertising privacy issues since before either the Google-DoubleClick merger or Microsoft's intended purchase of aQuantive were announced. As I said then: "Google, today, says that it has no plans to tie past history or search information across Web sites. Google says that it has no plans to match the DoubleClick cookies with any Google cookie. Yet, the possible integration of these two data sets - along with all of the other search data that Google collects - raises issues that the FTC could not have foreseen in 1999 and exemplifies the evolving privacy challenges in the online advertising space. It's time to deepen the dialogue about behavioral targeting, and an FTC workshop would be a great way to start." We still believe that a workshop would be useful for the industry as a whole, but considering that the FTC did get review authority over the merger, we also hope that the FTC can get more assurances from Google in writing on their future plans regarding the privacy of user data.