Upcoming public hearings by the U.S. Federal Trade Commission on whether antitrust and privacy laws are fit for the era of big tech will feature a significant number of scholars who have benefitted from Google funding, one of the companies with the most at stake from the process.
According to a review of the agenda for the hearings, more than one third of the scholars scheduled to participate have financial ties to Google, meaning the search giant has funded the author or their employer. Two of the speakers have been funded directly by Google; two others were involved in securing Google funding for their organizations. The remaining speakers identified work for law firms or economic consultancies that count Google as a client, or nonprofits the company has funded.
None have disclosed these ties in the materials for the hearings, the first of which is scheduled to take place on Thursday, Sept. 13. The FTC says it expects to hold up to 20 public hearings through January 2019.
The hearings come at a time when tech companies, and particularly Google, are facing increased scrutiny over antitrust and privacy issues. In Europe, Google was fined a record $5 billion by the EU for Android antitrust violations in July 2018. The month before, California passed the Consumer Privacy Act that gave new privacy rights to the state’s consumers, including the ability to view data that companies hold on them, and request that it be deleted and not sold to third parties.
Amid rising concerns about the influence of big tech, the FTC decided to hold hearings on “whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.”
While the hearings are being touted as a broad re-examination of the agency’s “near- and long-term law enforcement and policy agenda,” some believe that they are also focused on revisiting Google antitrust questions that were dismissed by the FTC in 2013.
Following the FTC’s settlement with Google in January 2013, leaked documents showed that key FTC staff wanted to sue Google for antitrust violations, but FTC Commissioners vetoed their recommendations.
The FTC said the hearings and request for public comments would “provide opportunities for FTC staff and leadership to listen to interested persons and outside experts representing a broad and diverse range of viewpoints” and “stimulate thoughtful internal and external evaluation of the FTC’s near- and long-term law enforcement and policy agenda.”
However, the prevalence of scholars who have undisclosed financial connections to Google raises questions about whether the much-anticipated events will represent all viewpoints. A review of the speaker bios for the first event, scheduled for September 13-14 at Georgetown University, shows the conference is dominated by speakers with ties to Google, especially those from George Mason University.
GMU has received hundreds of thousands of dollars in Google funding and its scholars have published extensively in support of the company’s antitrust arguments.
This isn’t the first time Google has managed to secure a large number of friendly academics at an FTC hearing with implications for its business. In January 2016, the FTC hosted a privacy conference to “inform policymaking with research” on privacy issues. More than half the researchers who presented at the conference had received financial support from Google, including the FTC’s own chief technologist, Lorrie Cranor, who received a $350,000 “unrestricted gift” from the company.
To be sure, many of the speakers at the FTC’s hearings this week are accomplished experts in their field, with contributions to make to this important debate. But the failure by the FTC to disclose the financial connections of many speakers to tech companies raises questions about whose interests they will be representing.
Some speakers may object that they didn’t personally work on Google-related matters. Even so, the public has an interest in knowing if their employer counts Google as a patron or client. Audience members may legitimately question whether a speaker would oppose the interests of one of their employer’s major clients or funders.
To aid transparency on these issues, we are therefore listing the publicly-available financial connections speakers have to Google, either directly or through their employers.
Five Panelists from George Mason University
In recent years, George Mason University (GMU) has become the focal point of Google’s network of paid academics, generating a large body of academic writing supporting the company’s position on antitrust policy.
Google has also worked with GMU behind the scenes to invite speakers funded by the company to its antitrust conferences, which are also heavily funded by the company. In 2014, The Washington Post published internal emails showing that Google had urged GMU to invite FTC officials to a 2011 conference since they were likely to be part of the antitrust investigation then taking place into Google’s business practices.
GMU speakers at the FTC’s September 13-14 antitrust conference include:
A former Republican FTC Commissioner during the Obama Administration, Wright today serves as a law professor at GMU’s Antonin Scalia Law School, the Executive Director of the Global Antitrust Institute, and Senior of Counsel at Google’s outside law firm, Wilson Sonsini Goodrich & Rosati.
During Wright’s first tenure at GMU before joining the FTC, the University’s Law & Economics Center received at least $762,000 in funding from Google. Wright has written at least six antitrust papers largely supporting Google’s position, and at least three other papers on patent and copyright issues that also largely support the policy views of the company.
Wright has disclosed Google’s financial support for his papers in some, but not all, cases.
In 2012, Google’s financial support of Wright’s academic work became an issue during his Senate confirmation for the FTC. Wright promised senate commerce committee staff that he would not take part in any agency enforcement decisions regarding Google for two years.
According to the FTC, Wright will participate on a panel titled “Has the U.S. Economy Become More Concentrated and Less Competitive: A Review of the Data”. His entry on the FTC agenda makes no mention of his Google work.
Manne’s small research center is funded by Google and has produced a long list of papers defending it from antitrust claims
Manne, the founder and executive director of the Google-funded International Center for Law & Economics (ICLE), has longstanding ties to GMU. Manne’s father, Henry G. Manne was the Dean Emeritus of the GMU Law School and the founder of the Law & Economics Center.
Geoffrey Manne has written at least ten policy papers supporting Google’s positions on antitrust, copyright/patent issues and search neutrality, as well as numerous op-eds and Congressional testimony supporting Google’s policy views. Manne has also co-authored three antitrust policy papers with Joshua Wright: “Google and the Limits of Antitrust: The Case Against the Case Against Google”; “If Search Neutrality is the Answer, What’s the Question”; and “Regulating Innovation: Competition Policy and Patent Law Under Uncertainty”.
Only days after European regulators filed their antitrust case against Google in April 2015, Manne was quoted in The New York Times defending the company from the antitrust charges. Two weeks later, Manne published an op-ed in The Wall Street Journal arguing that the EU’s case against Google reflected a deep misunderstanding of the search market.
Manne has been selective about disclosing Google’s financial support of ICLE and his research. He disclosed his Google support in testimony before Congress and in some published op-eds. However, he disclosed Google’s financial support in just four of the 10 papers he published on policy matters important to the company between 2010 and 2016 according to the Google Transparency Project.
Manne will participate on a panel titled, “The Consumer Welfare Standard in Antitrust Law.” Manne’s entry on the FTC agenda includes no disclosure of Google’s funding of ICLE or of Manne’s academic work.
Cooper was an associate professor of law at GMU and the director of research and policy at GMU’s Law and Economics Center, which has received hundreds of thousands of dollars in Google funding
Cooper, who serves as the FTC’s deputy director of economic analysis in the bureau of consumer protection, is currently on leave as an associate professor of law at GMU’s Antonin Scalia law school.
He has participated in several past panels with FTC officials, including two of the FTC PrivacyCon events in January 2016 and January 2017 – both heavily attended by Google-funded privacy researchers. He also participated in a February 2016 GMU panel with FTC officials titled “Antitrust Lessons for Privacy Regulators.”
Email communications between Cooper and Google obtained by Salon and The Washington Post showed how closely Google worked with Cooper and GMU to promote the company’s interests. In one case, a Google public relations executive worked to place an op-ed by Cooper that was favorable to the company.
On another occasion, Cooper asked Google lobbyist Adam Kovacevich to suggest friendly speakers to a GMU Law & Economics Center half-day symposium. In other emails, Cooper looked for Google speakers for a privacy forum. “We need an industry type, and I’d like to have a Google rep if possible,” he wrote.
Like Manne and Wright, Cooper has also written pro-Google academic papers including “Privacy and Antitrust: Underpants Gnomes, the First Amendment, and Subjectivity,” where he argued that privacy shouldn’t be part of any antitrust analysis of the company. The paper included no disclosure of Google’s funding of Cooper’s employer, the GMU Law & Economic Center.
At the FTC hearing, Cooper will moderate a panel titled “The Regulation of Consumer Data.”
Sayyed was a professor of antitrust at GMU, which receives hundreds of thousands of dollars of Google funding
Sayyed, who taught antitrust and competition law at GMU’s Antonin Scalia law school was appointed as Director of the FTC’s office of public policy planning by Commissioner Maureen Ohlhausen in April 2018.
Ohlhausen herself has made several public statements and comments suggesting she is a strong opponent of antitrust scrutiny of the technology industry. Joshua Wright tweeted a glowing endorsement of Ohlhausen’s appointment of Sayyed in 2018.
Sayyed will moderate a panel titled “The Current Landscape of Competition and Consumer Protection Law and Policy.”
Kobayashi is currently on leave from GMU, which has received hundreds of thousands of dollars in Google funding
A professor on leave from George Mason’s Antonin Scalia law school, Kobayashi is the current director of the FTC’s bureau of economics. Kobayashi is also a founding director of the Global Antitrust Institute, founded by Joshua Wright.
At the FTC hearing, Kobayashi will be moderating a panel entitled “Vertical Mergers.”
Other speakers with close Google connections
Sallet works for a law firm representing Google, Facebook, Amazon and other technology firms seeking to stave-off regulation
Sallet previously served as general counsel of the Federal Communications Commission and as deputy assistant attorney general in the Antitrust Division of the US Department of Justice. Today, he provides antitrust counsel to large technology companies as a partner at one of Silicon Valley’s largest lobbying and outside law firms, Steptoe & Johnson.
Since 2012, Steptoe & Johnson has reported more than $1.3 million in lobbying revenue from Facebook. The law firm also represents the Internet Association, the trade association of internet companies that includes Google, Facebook and Amazon among others.
Several of Sallet’s fellow partners work almost exclusively on Google-related policy and legal matters. Markham Erickson for instance, served as the Executive Director of the Google-backed Open Internet Coalition and also served as the general counsel of the Internet Association.
William Abrams, who was a Steptoe & Johnson partner until 2018, served as legal counsel for Google in several patent cases, including a Federal Circuit Court infringement case regarding software updates of the Chrome browser. And Stephen Davidson, the chair of Steptoe & Johnson’s International Arbitration Group has represented Google in litigation throughout the United States and abroad.
Sallet’s entry in the FTC agenda lists only his affiliation with the nonprofit Benton Foundation, not his legal work with Steptoe & Johnson. Sallet will be participating in two panels: “Vertical Mergers” and “The Consumer Welfare Standard in Antitrust Law”
Shapiro is a consultant for Charles River Associates, which has defended Google in numerous antitrust suits and investigations. He co-authored a book with Google’s chief economist
A former deputy attorney general for economics in the DOJ’s antitrust division and a member of the Council of Economic Advisers in the Obama administration, Shapiro co-authored a 2000 book with Google’s chief economist, Hal Varian, entitled “Information Rules: A Strategic Guide to the Network Economy.”
Shapiro also served as a senior consultant to the economic consulting firm Charles River Associates from 1998 to 2009 before joining the Obama Administration and again from 2012 to present. Charles River Associates served as an advisor to Google during the FTC’s antitrust investigation.
Shapiro re-joined Charles River Associates on November 19, 2012, days before the FTC opened negotiations with Google to settle its antitrust investigation.
At the FTC hearing, Shapiro will be participating in a panel titled “Vertical Mergers”
Baker is a senior consultant at Compass Lexecon, which represented Google in several antitrust matters
A former director of the FTC’s bureau of economics and later an FTC consultant on merger policy, Baker is a law professor at the Washington College of Law, American University.
Baker is also on the board of advisors of the Global Antitrust Institute (GAI) where Joshua Wright serves as executive director. GAI’s website includes no disclosure of corporate funding, but as detailed above, Google has been a substantial and frequent funder of Wright’s academic work as well as many of the institutions with which he is affiliated.
Baker also serves on the advisory committee and has been a senior consultant with Compass Lexecon since 2011. Compass Lexecon advised Google in the FTC’s antitrust investigation, working closely with Google’s in-house counsel and outside counsel Wilson Sonsini Goodrich & Rosati.
Compass Lexecon has also boasted of submitting several white papers and working closely with FTC staff throughout the investigation.
Furman is a fellow at the Google-funded Peterson Institute for International Economics
In January 2017, Furman joined the Peterson Institute for International Economics (PIIE) as a non-resident senior fellow. The same year, Google became one of the largest financial backers of PIIE, contributing between $100,000-$999,999 through the “Google Foundation of the Tides Foundation” according to PIIE’s transparency report.
With the exception of a contribution “over $100,000” in 2012, Google had not been a PIIE supporter in subsequent years until Furman joined the organization in 2017. While he chaired the Obama administration’s council of economic advisors, Furman met often with senior Google officials, including at key junctures of the FTC investigation into the company. The Wall Street Journal reported that Furman met with Google lobbyist Johanna Shelton and General Counsel Kent Walker on December 12, 2011, in the midst of the FTC’s antitrust investigation of the company.
Later that day, Furman met with several FTC officials, including the FTC chairman, Jon Leibowitz, according to the story. Furman will be participating on a panel titled “The Current Landscape of Competition and Consumer Protection Law and Policy.”
McDavid works at law firm Hogan Lovells, which has represented Google in numerous antitrust and other matters
McDavid focuses on antitrust investigations, merger review, and antitrust policy issues at Hogan Lovells, a law firm that has also represented Google in several legal matters including patent disputes.
Former FTC Chair Edith Ramirez, who was criticized during her tenure at FTC for being too acquiescent to Google’s wishes, now heads global antitrust for Hogan Lovells. Only days after a Wall Street Journal article in 2015 revealed that FTC staff at the bureau of competition recommended filing antitrust charges against Google in 2012, Google lobbyist Johanna Shelton demanded that the FTC and Ramirez issue a public statement to help the search giant staunch the negative coverage of the story. Two days later, Ramirez did just that, releasing a public statement that addressed Shelton’s concerns.
McDavid will be participating on a panel titled, The Current Landscape of Competition and Consumer Protection Law and Policy.
Fiona Scott Morton
Scott Morton is a senior consultant for Charles River Associates, which has represented Google in numerous antitrust matters around the world
Scott Morton is a professor of economics at Yale School of Management. From 2006-2011 and again from 2013 to present, Scott Morton has served as a senior consultant to Charles River Associates, which advised Google in the FTC investigation and numerous other antitrust matters.
Scott Morton will be participating on a panel titled “Has the U.S. Economy Become more Concentrated and Less Competitive: A Review of the Data.”
Kimmelman is the head of Google-funded nonprofit Public Knowledge
Kimmelman, a consumer protection advocate and expert in competition and antitrust law is the current president and CEO of Public Knowledge, a nonprofit digital rights group focused on copyright, telecommunications and internet law. Google has been a “platinum” financial sponsor of Public Knowledge since at least 2015.
In addition, Google’s former head of public policy, Andrew McLaughlin, is currently a Public Knowledge board member. Hal Abelson, a faculty member with Google Research, previously served on the board of the organization.
Kimmelman’s FTC bio includes no disclosure of Google’s funding of his organization. Kimmelman will be participating on a panel titled, “Vertical Mergers.”
O’Brien is an Executive Vice President at Compass Lexecon, which advised Google in the FTC’s antitrust investigation of the company and other matters
Before joining Compass Lexecon, O’Brien served as a senior economic policy adviser in the Federal Trade Commission’s Bureau of Economics. O’Brien also worked at the Department of Justice’s antitrust division. While at the FTC, he oversaw the economic analysis of all of the agency’s antitrust investigations.
Compass Lexecon advised Google in the FTC’s antitrust investigation, working closely with Google’s in-house counsel and outside counsel Wilson Sonsini Goodrich & Rosati. Compass Lexecon also boasts of submitting several white papers and working closely with FTC staff throughout the investigation.
O’Brien will be on a panel titled “Vertical Mergers.”
Comments Submitted Also Lack Disclosure
The FTC also invited interested parties to submit written comments for the hearings.
Many groups and individuals did so—including ICLE, Tech Freedom, David Balto, R Street Institute and Computer and Communications Industry Association (CCIA),—without disclosing the fact that they have been funded by Google.