Alan Davidson: Is Google Like Gas or Like Steel?

Bruce D. Brown and Alan B. Davidson, The New York Times, January 4, 2013

AFTER a two-year investigation, the Federal Trade Commission concluded this week that Google’s search practices did not violate antitrust law. Those who wanted to see an epic battle like the one the government fought with Microsoft in the 1990s were sorely disappointed. But the analogy to the browser war of the Web’s early days was never the right one. It failed to capture the dangers free speech would have faced if regulators had agreed with Google’s critics.

The theories that many critics advanced — that search must be “neutral” because it is akin to a public utility, or that computer-generated search results are not speech and therefore not protected under the First Amendment — would have undermined free press principles across the Internet. That the F.T.C. decision permits Google to continue to use its judgment in analyzing search requests and presenting pertinent results is a victory for online expression and is consistent with First Amendment law since the 1940s.

Seven decades ago, a lawsuit against The Associated Press applied antitrust rules to the media and was resolved in a way that ultimately protected First Amendment interests. This case was always a better parallel than Microsoft to the F.T.C. investigation of Google. Like Google today, The A.P. had extraordinary influence. Then as now there were questions about whether something more than common antitrust law should govern companies that play such an important role in the delivery of information to the public.

Back then, the Justice Department alleged that A.P. bylaws allowed its member papers to impede local competitors by denying them access to The A.P.’s expansive news network. A trial court agreed but applied a theory far broader than routine antitrust law. It held that news was not an “ordinary” product like “steel” governed solely by antitrust, but rather something more “vital” because it was “clothed with a public interest.”

In other words, the trial court wanted to treat the mass media like a public utility, which carried considerable consequences. For example, while it would be illegal under antitrust law for a large steel company to conspire with competitors to fix prices, that company has no obligation to sell to every carmaker that wants steel. A public utility, on the other hand, has to serve everyone in the marketplace equally. Applying that standard to The A.P. would have opened the door to far broader regulation and could, in theory, have meant something as absurd as requiring newspapers to cover every press release or publish every letter to the editor.

When the case reached the Supreme Court in 1945, the modern understanding of the First Amendment, with its insistence on an independent news media, had yet to take shape. So it was with great significance that — even though The A.P. lost its appeal and had to allow more access to its services — the court steered entirely clear of the public-utility model. It looked instead to standard antitrust law in finding The A.P.’s conduct to be a classic restraint on trade.

The court went further in setting down a marker that to this day restrains government regulation of the media. Justice Hugo L. Black, who would become a leading champion of the First Amendment, wrote that nothing in the ruling could “compel A.P. or its members to permit publication of anything which their ‘reason’ tells them should not be published.”

This began a historic run in which the court transformed the media into an institution with the autonomy to serve as a check on government power. The First Amendment as we know it would look very different if public utility obligations had been forced onto the press that day.

If The A.P. was concerned about a regulator in every newsroom, Google was concerned about a regulator in every algorithm.

Advocates of aggressive action against Google saw the computer algorithms behind search as a utility that should be heavily regulated like the gas or electricity that flows into our homes. But search engines need to make choices about what results are most relevant to a query, just as a news editor must decide which stories deserve to be on the front page. Requiring “search neutrality” would have placed the government in the business of policing the speech of the Internet’s information providers. To quote Justice Black, it would have made search engines publish those results “which their ‘reason’ tells them should not be published.”
Others argued that the F.T.C. did not need to be guided by First Amendment concerns at all because search results are created by computers, not by human beings. Yet computers “speak” in many ways today. Lawmakers could have used F.T.C. precedent against Google to regulate the content of Amazon’s book recommendations, the locations on Bing’s maps, the news stories that trend on Facebook and Twitter, and many other online expressions of social and political importance.

The F.T.C. resisted these harmful theories, and as a result speakers all over the Internet won. But that doesn’t mean Google is exempt from regulation. The First Amendment is not a grant of immunity for any business, and antitrust scrutiny does not end where editorial judgment begins. But the A.P. case shows that antitrust laws can be enforced while protecting the right of a free press to print what it chooses and nothing more.

This makes regulation of the media difficult. But regulating speech should not be easy, like regulating a public utility, but hard, as the F.T.C. has correctly found.

Bruce D. Brown is the executive director of the Reporters Committee for Freedom of the Press and a lecturer at the University of Virginia Law School. Alan B. Davidson is a visiting scholar at M.I.T.’s Technology and Policy Program and a former director of public policy for the Americas at Google.

Campaigns’ Use of Supporters’ Data Worries Privacy Advocates

Craig Timberg, The Washington Post, November 20, 2012


Shortly before Election Day, a Stanford graduate student reported that the campaign Web sites of both President Obama and Republican Mitt Romney were “leaking” personal information about their supporters through careless data handling.

Had it been Facebook and Google, a federal investigation might have ensued, and the companies could have suffered significant public relations setbacks and perhaps fines. But the Federal Trade Commission, the government agency most focused on personal privacy, has no jurisdiction over campaigns or political groups.
That is a small example of what privacy advocates say is a big problem with efforts to protect personal information in the United States: The politicians are not guarding the chicken coop. They are the foxes.

Obama’s sophisticated use of Big Data gave him a crucial edge in what, based on popular support alone, should have been a close election. Republicans are desperate to catch up. But it’s not clear who is positioned to protect the rights of voters at a time when politicians from both parties increasingly build their campaigns on the insights that commercial data brokers provide.

Washington has a community of professional privacy advocates at places such as the ACLU, the Electronic Privacy Information Center and the Center for Digital Democracy. Jeff Chester, executive director of the Center for Digital Democracy, said he approached lawmakers from both parties to express his concerns long before the election. But he got nowhere.

“Maybe we’re digital Don Quixotes,” Chester said. “There was a lack of interest, not surprisingly.”

People routinely tell pollsters that they’re concerned about online privacy, and Chester and his colleagues in the field count some allies on Capitol Hill and in the White House. The FTC under Chairman Jon Leibowitz and David Vladeck, head of its Bureau of Consumer Protection, have made the agency far more aggressive on consumer privacy generally — even if political campaigns are beyond their reach.

Yet overall the laws in the United States are much less strict than in Europe, where there are tight limits on what personal information can be collected and how long it can be kept. Companies caught crossing the line can provoke furious backlashes among their users.

The American political landscape, by comparison, is amorphous when it comes to privacy. There are widespread concerns on both the right and left but no single, coherent constituency demanding greater protections.

For all the talk in recent years about online privacy, data-hungry Google remains the most popular search engine and data-hungry Facebook the most popular social media site. Both worked closely with the campaigns and also have growing lobbying operations in Washington. Google’s Executive Chairman Eric Schmidt was a regular visitor at Obama’s Chicago campaign headquarters, say those who worked there, offering advice to the campaign’s data-savvy technologists.

Privacy advocates say the tide will eventually turn, when Americans truly understand the extent to which their information is collected and traded. A recent poll by the University of Pennsylvania’s Annenberg School for Communications found that nearly two-thirds of people would be less likely to support a candidate who bought data about voters’ online activities and used it to tailor political ads.

“People still don’t quite understand this stuff,” said Joseph Turow, the lead researcher on the Annenberg poll. He said politicians are “hoping people will, quote-unquote, get used to it.”

Crovitz: Obama's 'Big Data' Victory

Marketing politicians is now like selling drinks. It involves filtering policies and voters through algorithms.

L. Gordon Crovitz, The Wall Street Journal, November 18, 2012

When the Obama campaign emailed supporters to join a $40,000-a-ticket dinner in June at the New York home of actress Sarah Jessica Parker, journalists at ProPublica noticed something odd. They uncovered seven versions of the email solicitation for the fundraiser, some mentioning a second fundraiser that night, a concert by Mariah Carey, others that Ms. Parker is a mother, and still others that Vogue editor Anna Wintour would be at the dinner.


Who got which email depended on "big data"—information about each fundraising prospect and how different people react to different messages. In this year's election, it looks as if the Obama team's use of such data was one of its biggest edges over the Romney effort.

Some uses of big data were known before the election—for instance, the Obama website was even more assiduous than online retailers like Best Buy about dropping "cookies" on users' computers to gather information about their online habits. Reporting since the election makes clear just how important the role of data was in deciding the election.

Campaign manager Jim Messina pledged to "measure every single thing in this campaign" and built an analytics department five times the size of the 2008 effort. A Time magazine reporter got access to the data scientists in the campaign's Chicago headquarters on the condition that the reporter would keep mum until after the election. "What they revealed as they pulled back the curtain," Time recently reported, "was a massive data effort that helped Obama raise $1 billion, remade the process of targeting TV ads and created detailed models of swing-state voters that could be used to increase the effectiveness of everything from phone calls and door knocks to direct mailings and social media."

According to the magazine, the campaign created a "single massive system that could merge the information collected from pollsters, fundraisers, field workers and consumer databases as well as social-media and mobile contacts with the main Democratic voter files."

The campaign's "chief scientist," Rayid Ghani, had been at Accenture, where he co-wrote an academic paper describing work helping companies that "analyze large amounts of transactional data but are unable to systematically 'understand' their products." For example, Mr. Ghani helped grocers figure out why people bought orange juice by reducing the product to attributes that could be analyzed by algorithms—"Brand: Tropicana, Pulp: low, Fortified with: Vitamin-D, Size: 1 liter, Bottle type: plastic."

Marketing politicians is now like selling drinks. It involves filtering polices and voters through algorithms.

The Obama campaign focused on data showing the "persuadability" of voters. Multivariate tests identified issues and positions that could move undecided voters, ProPublica said: "The persuasion scores allowed the campaign to focus its outreach efforts—and their volunteer calls—on voters who might actually change their minds as the result. It also guided them in what policy messages individual voters should hear."

Big data give incumbents a big advantage, which seems to have surprised the Romney team. The Obama campaign has used cookies to track its supporters online since the 2008 election. It spent the past 18 months creating a new, unified database, factoring in some 80 pieces of information about each person, from age, race and sex to voting history. (The campaign denied reports that it tracked visits to pornography sites in its outreach algorithms.) The Romney campaign says it tried to match the Obama campaign's collection and analysis of data but had to start from scratch and had just seven months after the primaries.

What does this mean for you? Voters need to develop buyer-beware habits. The era of politicianssaying the same thing to all voters is over. Campaigns aim to tell voters exactly what each wants to hear: data-driven pandering.

Another consequence is that efforts by the Federal Trade Commission and other agencies to regulate data mining in the name of privacy are destined to collapse. Last month, Sen. Jay Rockefeller (D., W.Va.) sent a letter to the top "information broker" companies, accusing them of being "elusive" about what data they collect. Companies such as Acxiom and Experian replied that much of their information comes from government databases. They should also point out that political campaigns are among the most sophisticated users of the consumer data they collect.

The Obama campaign deserves credit for its big win through the sophisticated use of big data. As for regulators, they should understand that the information genie will not go back into the bottle—whether consumer information is used to sell orange juice or politicians.

A version of this article appeared November 19, 2012, on page A17 in the U.S. edition of The Wall Street Journal, with the headline: Obama's 'Big Data' Victory.

Obama's Approach to Big Data: Do As I Say, Not As I Do

Politicians' Policy Decisions May Stymie Tools That Got Them Elected

Kate Kaye, Ad Age, November 16, 2012


One of the keys to success for President Barack Obama's reelection bid was its masterful use of data. But lost in the hype is this: The administration supports a browser-based do not track system that, if pervasive, would throw a wrench into the data-collection tactics that empowered the campaign.

Even today BarackObama.com features data-tracking cookies from several online ad and analytics firms.
The Mitt Romney and Obama campaigns spent hundreds of thousands of dollars in 2012 on data and related services to enhance their own voter contact information, inform their online and offline messaging and target ads. At the same time, Congress is inspecting the practices of firms that buy, sell and filter consumer data for corporate marketers.

"The Obama administration and the GOP should confront head-on the privacy issues raised by [their] far-reaching use of digital profiling and targeting data," argued privacy advocate Jeffrey Chester, founder of the Center for Digital Democracy. "It would be unfortunate for the administration's work to advance Do Not Track and other key safeguards if they failed to tackle the use of powerful data targeting technologies by political campaigns."

Industry and privacy wonks actually agree
It's a rare occurrence, but both Mr. Chester and the ad industry are in agreement on one thing: They both appreciate the attention the Obama data machine is getting. Privacy groups want to raise awareness of data collection and usage in the hopes of generating public support for curbing what they see as an increasingly infiltrative violation of personal privacy by marketers and the mushrooming data industry.

"Protecting the privacy of consumers and citizens should require policymakers from both sides to confront the civil liberties implications of what has been unleashed," added Mr. Chester, noting that the 2012 campaigns should divulge what data they collected, how they targeted ads and what will happen to the information now that the election is over.

Industry players, especially their Capitol Hill lobbyists, aim to convince legislators that the very data practices some of them criticize are helping them and their colleagues win races.

"Big data isn't going to help Todd Aken," said Mike Zaneis, general counsel of the Interactive Advertising Bureau, referring to the disgraced Congressman from Missouri who lost his Senate campaign after claiming women can ward off pregnancy resulting from "legitimate rape." Continued Mr. Zaneis, "But the Obama campaign used a lot of online data and a tremendous amount of offline data to go precinct-by-precinct to get-out-the-vote."

Third-party tags
More than a week after the election, BarackObama.com houses an array of third-party tags that track users for ad targeting and campaign and site analytics. Yesterday, around fifteen ad company tags were surfaced by Evidon's Ghostery software, including tags from BlueKai, which calls itself a "big data activation solution," and Appnexus, which among other things allows advertisers to use a variety of user behavioral data to target ads to those users on Facebook.

Both the Obama and Romney campaigns used social-media-widget and data provider ShareThis to target fundraising ads and identify issues and trends swing state voters were interested in, according to ShareThis CEO Kurt Abrahamson. The company tracks when people visit web pages and share them on Twitter, Facebook, LinkedIn or other popular social sites and allows advertisers to target ads using that anonymized information.

Clashing goals of campaigning and governing
Data tracking tools and techniques that have helped legislators on both sides of the aisle build supporter lists, generate donations and get out the vote could be stymied by a do-not-track browser standard or restrictive privacy legislation.

In February, the Federal Trade Commission and the ad industry announced they'd work together with browser companies to develop a DNT standard. At the same time, the U.S. Commerce Department introduced a consumer privacy bill of rights that guided companies to provide individual control over data collection, better data security measures, and transparency of data use, and also called for "a reasonable amount of data collection by companies." Secretary of Commerce John Bryson said at the time the department would work with Congress to implement the privacy bill of righs -- which some deem to be supportive of industry's self-regulatory approach -- through legislation.

The Digital Advertising Alliance, a large coalition of ad industry trade groups, has conducted an "ongoing dialogue with the FTC as recently as yesterday to figure out how to implement the [DNT] standard," said Stu Ingis, counsel to the DAA, on Wednesday. The DAA oversees the industry's Ad Choices program, which allows people to opt-out from online ad targeting through display ads that include the group's small triangular symbol. It's not entirely clear whether the FTC is confident that the DAA's self-regulatory program is enough to protect consumer privacy.

As reported by Politico earlier this month, FTC Chairman Jon Leibowitz said, "If by the end of the year or early next year, we haven't seen a real Do Not Track option for consumers, I suspect the commission will go back and think about whether we want to endorse legislation." Mr. Leibowitz is expected by beltway insiders to step down at the end of the year, and some believe his goal to finalize a DNT standard before he leaves is pressurizing the situation.

A free pass for political data?
Enter the Bipartisan Congressional Privacy Caucus. The group recently received responses to inquiries into several data firms that manage and analyze, and in some cases buy and sell, online and offline consumer data. Nine firms -- Acxiom, Epsilon, Equifax, Experian, Harte-Hanks, Intelius, Fair Isaac, Merkle, and Meredith Corp. -- submitted lengthy and often vague answers to a series of questions about their data businesses and practices.

"Many questions about how these data brokers operate have been left unanswered, particularly how they analyze personal information to categorize and rate consumers," said lawmakers in a joint statement regarding the companies' responses.

Absent from the list of data firms questioned were similar companies that deal mainly in voter file and political information that is often enhanced with consumer demographic, shopping and other data. For instance, NGP Van, the Democratic data powerhouse favored by the Obama team was not part of the inquiry. The Obama campaign and DNC spent hundreds of thousands of dollars with NGP Van this election cycle alone. The firm matches its voter data with data from TargetSmart, which offers "the richest set of consumer and interest data, allowing the most sophisticated targeting," according to the NGP Van site.

Other political data firms left out of the inquiry include Catalist, another Democratic data firm; Campaign Grid, which offers Republican data and online ad targeting; and Aristotle, a well-established non-partisan political data company. People involved with the congressional inquiry deny that political data firms were left off the list for any strategic reason.

In a press release about the data broker responses, the Privacy Caucus stated it "will push for whatever steps are necessary to make sure Americans know how this industry operates and are granted control over their own information."

Rep. Ed Markey, a Democrat from Massachusetts and Caucus co-chair, has sponsored a Do Not Track Kids Act and a mobile privacy bill.

Observers don't expect a privacy bill to be passed anytime soon; if that does happen, it may not apply to political campaigns or groups anyway. For instance, political messages are exempt from CAN-SPAM laws, and political organizations are not restricted by the Do Not Call Registry.

"Often when data laws are being proposed and put forward, the politicians exempt themselves," said Don Hinman, senior VP for data strategy at Epsilon, which gets some of its data from political advertisers but mainly is a purveyor of consumer information.

Mr. Ingis considers it exemption for political messages to be a first amendment issue. "It would be very hard for such a limitation on political messages to be restricted. . . . and I think that would have been true in the context of Do Not Call if they would have gone there," he said.