In the seemingly waning days of the U.S. government's antitrust review of the Google-DoubleClick union, consumer groups are lodging a last-minute plea: don't forget about privacy.
That was the message during a conference call with reporters Tuesday morning hosted by the Electronic Privacy Information Center and the Center for Digital Democracy.
The directors of those groups, who predicted a decision by the Federal Trade Commission is "imminent," voiced concern that the FTC may overlook the potential privacy implications raised by the combined user massive data stores of the two prominent companies. (The two Washington-based groups, who have positioned themselves as arguably the most vocal opponents of the merger, filed a privacy complaint with the FTC earlier this year.)
Their predictions about the FTC's stance are hardly theoretical. In November, Democratic commissioner Jon Leibowitz told participants at a public workshop on online behavioral advertising that "our analysis of the merger has got to be about competition and potential competition. It can't be about privacy per se."
But EPIC and CDD insist that's not the case. They argue the FTC has ample legal authority--and moreover, they contend, is obligated--to address privacy issues in its merger review and to impose conditions, if necessary, to ensure the united company does not imperil consumer privacy.
"What Google is claiming, and I'm concerned some commissioners may embrace, is the notion that there are not specific privacy concerns intrinsic to the Google-DoubleClick merger, which frankly is absurd on the face of it, when you're merging the two number ones in search and advertising with vast data for targeting all across the globe," said Jeff Chester, CDD's executive director.
Senators Herb Kohl (D-Wisc.) and Orrin Hatch (R-Utah), who lead a Senate antitrust panel that held a hearing on the merger this fall, and a dozen House of Representatives Republicans have also raised questions about the privacy implications of the deal. (The European Union, which expects to issue its ruling on the deal by April, said Monday that it plans to hold a January hearing in Brussels on the privacy implications.)
"I think they're in a very difficult position at this point if they ignore what they're hearing from the Hill," said EPIC executive director Marc Rotenberg. "I would go back to Commissioner Leibowitz and see whether he'd give the same speech again."
FTC representatives were not immediately available for comment Tuesday.
The groups said they're also unamused by Federal Trade Commission Chairman Deborah Platt Majoras's dismissal last week of accusations that her participation in the review process posed a clear conflict of interest. Majoras' husband is a partner with the law firm Jones Day, where Majoras herself used to work, and Jones Day stated at a now-deleted corporate Web page that it was representing DoubleClick "on the international and U.S. antitrust and competition law aspects of its planned $3.1 billion acquisition by Google Inc."
FTC spokespeople later said Jones Day was representing DoubleClick before the European Commission only and had not yet "appeared before" U.S. regulators. Majoras later released a statement saying she would not recuse herself because her husband "is in no way connected to the matter, nor are any of the parties to the matter otherwise currently his clients."
Rotenberg disagreed. "It is still our view she is required under federal law and agency guidelines to recuse herself," he told reporters Tuesday.
In addition to having filed a Freedom of Information Act request with the FTC seeking all documents exposing ties between Jones Day and the Google-DoubleClick matter, Rotenberg said the groups are now strongly considering the possibility of filing a court challenge against Majoras' failure to recuse herself. They haven't yet decided whether they'd file suit before or after the FTC releases its decision, Rotenberg said.
Google declined to comment directly on the privacy groups' latest activities but sent CNET News.com the following statement: "This acquisition is good for consumers, advertisers and website publishers and we continue to be confident that it will be approved."