[Senate Hearing 110-194]
[From the U.S. Government Publishing Office]
S. Hrg. 110-194
AN EXAMINATION OF THE GOOGLE-DOUBLECLICK MERGER AND THE ONLINE
ADVERTISING INDUSTRY: WHAT ARE THE RISKS FOR COMPETITION AND PRIVACY?
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HEARING
before the
SUBCOMMITTEE ON ANTITRUST,
COMPETITION POLICY AND CONSUMER RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 27, 2007
__________
Serial No. J-110-25
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
39-015 PDF WASHINGTON DC: 2007
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
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Subcommittee on Antitrust, Competition Policy and Consumer Rights
HERB KOHL, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
Jeffrey Miller, Chief Counsel
Peter Levitas, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 3
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin...... 1
prepared statement........................................... 164
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 166
Schumer, Charles E., A U.S. Senator from the State of New York... 18
WITNESSES
Cleland, Scott, President, Precursor LLC, McLean, Virginia....... 11
Drummond, David, Senior Vice President of Corporate Development
and Chief Legal Officer, Google, Mountain View, California..... 5
Lenard, Thomas M., Senior Fellow, Progress and Freedom
Foundation, Washington, D.C.................................... 9
Rotenberg, Marc, Executive Director, Electronic Privacy
Information Center, Washington, D.C............................ 13
Smith, Bradford L., Senior Vice President, General Counsel, and
Corporate Secretary, Microsoft Corporation, Redmond, Washington 7
QUESTIONS AND ANSWERS
Responses of David Drummond to questions submitted by Senator
Kohl........................................................... 33
Responses of Thomas Lenard to questions submitted by Senator Kohl 39
Responses of Marc Rotenberg to questions submitted by Senator
Kohl........................................................... 42
Responses of Brad Smith to questions submitted by Senator Kohl... 47
SUBMISSIONS FOR THE RECORD
AEI-Brookings Joint Center for Regulatory Studies, Robert W. Hahn
and Hal J. Singer, Washington, D.C., report.................... 51
Center for Democracy & Technology, Washington, D.C., statement... 102
Cleland, Scott, President, Precursor LLC, McLean, Virginia,
statement and attachment....................................... 104
Drummond, David, Senior Vice President of Corporate Development
and Chief Legal Officer, Google, Mountain View, California,
statement...................................................... 158
Lenard, Thomas M., Senior Fellow, Progress and Freedom
Foundation, Washington, D.C., statement........................ 167
Rotenberg, Marc, Executive Director, Electronic Privacy
Information Center, Washington, D.C., statement and attachment. 173
Schmidt, Eric, Chairman of the Executive Board and Chief
Executive Officer, Google Inc., Washington, D.C., letter....... 196
Smith, Bradford L., Senior Vice President, General Counsel, and
Corporate Secretary, Microsoft Corporation, Redmond,
Washington, statement.......................................... 198
AN EXAMINATION OF THE GOOGLE-DOUBLECLICK MERGER AND THE ONLINE
ADVERTISING INDUSTRY: WHAT ARE THE RISKS FOR COMPETITION AND PRIVACY?
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THURSDAY, SEPTEMBER 27, 2007
U.S. Senate,
Subcommittee on Antitrust, Competition Policy and
Consumer Rights, Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl,
Chairman of the Subcommittee, presiding.
Present: Senators Kohl, Schumer, and Hatch.
OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Chairman Kohl. Good afternoon to you all. Our hearing today
will examine the consolidation currently underway in the
Internet advertising industry, including the planned
acquisition of DoubleClick by the Internet giant Google.
Advertising on the Internet is $17 billion business annually
and is growing by about 30 percent a year, an amount which will
only continue to increase dramatically as more news and
entertainment content is delivered over the Internet. With
similar acquisitions announced by Microsoft, Yahoo, and AOL,
the total value of merger activity in this industry does exceed
$30 billion already this year.
But much more than Internet advertising is at stake. This
consolidation has profound consequences for all those who use
the Internet and for all of those who sell products and
services on the Internet. The Internet offers consumers an
amazing array of information and entertainment choices. Best of
all, beyond the fee consumers pay to access the Internet, this
incredible wealth of information is available for free. But the
companies that bring this content to consumers, recognizable
names such as Google, Microsoft, and AOL, are not charitable
organizations.
Advertising is the fuel that drives the Internet. Search
companies like Google sell advertisers the right to place
advertising on their search result pages--advertising which is
highly targeted based on the words used in the consumer's
search. And content companies like CNN.com or
washingtonpost.com make money by selling graphics which display
ads on their websites. These display ads are closely related to
the content of the Web page and the demographics of the
audience that views the Web page.
The leading company placing Internet display ads on behalf
of advertisers and on behalf of website owners is DoubleClick.
Currently under review at the FTC is Google's planned
acquisition of DoubleClick. For literally hundreds of millions
of Americans and consumers around the world, the name Google is
synonymous with a quick, easy, and reliable way to access a
wealth of information and entertainment choices. Not even in
existence a decade ago, Google has become universally known as
the best and the fastest way to search the Internet. In
harnessing the power of Internet advertising, Google has
developed into one of the wealthiest and most profitable
corporations in the world, with a current market capitalization
of $170 billion in its very short corporate life.
Google now seeks to acquire DoubleClick. The acquisition of
the leading server of display ads--DoubleClick-by the dominant
seller of search-based text ads--Google--obviously warrants
close examination by the antitrust regulators at the FTC. Well,
advertisers and Internet publishers have no choice but to deal
with Google, giving Google a stranglehold over Internet
advertising and the power to raise ad rates. Once these two
companies have joined forces and combined their gigantic
information resources, will the barriers to entry for a new
entrant into the marketplace simply be too high? On the other
hand, will the likely benefits to the advertising market and
consumers by improving the targeting and precision of Internet
advertising outweigh the potential damage to competition
arising from this merger?
But this merger and the ongoing consolidation in the
Internet advertising industry as a whole raises equally
important issues of consumer privacy. Google collects an
enormous amount of information on computer users' search
history and Internet preferences. DoubleClick also collects a
vast amount of information regarding consumers' Internet
preferences. While DoubleClick assures us today that this
information is shared with no one other than the advertiser or
the website carrying the advertising, what will happen to this
treasure trove of consumer data once Google gains control of
DoubleClick? Do consumers need to worry about the security and
use of their privacy personal information as Google continues
to grow more powerful?
Some commentators believe that antitrust policymakers
should not be concerned with these fundamental issues of
privacy and merely be content to limit their review to
traditional questions of effects on advertising rates.
Respectfully, we disagree. The antitrust laws were written more
than a century ago out of a concern with the effects of undue
concentrations of economic power for our society as a whole and
not just merely their effects on consumers' pocketbooks. No one
concerned with antitrust policy should stand idly by if
industry consolidation jeopardizes the vital privacy interests
of our citizens so essential to our democracy.
So we express that we have not reached a conclusion with
respect to any of the vital questions that we will be exploring
today. We have an open mind, and we have a need to examine
these issues closely as the stakes for our society and the
increasingly Internet-based economy are very high. We look
forward to the testimony of our distinguished witnesses here
today, and before we call on you for your statements, we turn
to the Ranking Member on this Committee, the very distinguished
Senator Orrin Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. We welcome
all of you to the Committee. I want to thank you for scheduling
this important hearing. Let me see. Do I have this on? As
always, it is a pleasure to be with you.
I would also like to thank our distinguished panel of--for
some reason, this is not working very well, is it?
I want to thank our distinguished panel of witnesses today
and thank them for agreeing to testify. And I especially want
to welcome to the Committee and thank David Drummond and Brad
Smith for appearing before us today. I appreciate all of you
doing it. I realize being the general counsel and chief legal
officer of a large corporation is a demanding job, and I am
grateful to you both for taking the time to come and testify.
The purpose of this hearing, as with all previous mergers
under Senator Kohl's chairmanship, is to properly define the
market in question and then discuss how the law applies. In the
case of this specific hearing, we will also explore the
legitimate questions of privacy. My goal for that portion of
the hearing will be to have a frank discussion of the facts so
that consumers are informed about the products offered by the
corporations involved in this merger, because I believe many
consumers do not fully understand the amount of data being
collected about them and how it is used by these businesses.
Accordingly, I anticipate that we will touch on a number of
topics during this hearing, but the fundamental question
remains: Does the Google-DoubleClick merger violate our
Nation's antitrust laws?
The first question to be asked then is: What type of merger
is proposed? Now, I ask this question because Google argues in
information provided to the Committee that they are not a
competitor of DoubleClick. Now, is this then a conglomerate
merger where we will explore the legal concepts of reciprocity
and entrenchment? Is it a vertical merger? Or is this a merger
between two competitors competing for a portion of the Internet
advertising market? If this is the case, then the question of
market power has to be addressed. Market power has been defined
as ``the ability to profitably maintain prices above
competitive levels for a set price without a resulting decrease
in consumer demand.'' Google competitors have argued that if
the transaction is finalized, then in addition to the 70
percent of the text-based advertising that Google currently
controls, the combined firm will account for nearly 80 percent
of display ads. This poses the question: Can any firm, even one
with the resources of Microsoft, overcome such a market
position?
Then there is the question of privacy. I believe that
Google's intent is to act in a responsible manner with the
information that it collects. However, I also believe the
American consumer must be made fully aware of the fact that
when they use search engines or click on an advertisement,
whether it is a text or display ad, there is a strong
possibility that personal information is being collected and
stores. It is then up to the consumer to decide if that
consumer wishes to use the services offered by these companies.
Now, Mr. Chairman, these are important questions. I look
forward to learning the thoughts and conclusions of this august
panel of witnesses that you have invited to be with us today.
And, again, I welcome all of you here, and I am going to be
extremely interested in this particular hearing.
Thank you, Mr. Chairman.
Chairman Kohl. Thank you very much, Senator Hatch.
We would now like to introduce our distinguished panel of
witnesses. The first witness today will be David Drummond. Mr.
Drummond is the Senior Vice President for Corporate Development
and Chief Legal Officer at Google. In this role, Mr. Drummond
works with the management teams at Google to evaluate new
business opportunities, including alliances and mergers.
Our next witness will be Brad Smith. Mr. Smith is the
Senior Vice President and General Counsel for Microsoft. While
at Microsoft, Mr. Smith has played a leading role in the
company's intellectual property, competition, and other public
policy issues. He is also serving as Microsoft's Chief
Compliance Officer.
Following him we will have Dr. Thomas Lenard. Dr. Lenard is
currently a Senior Fellow at the Progress and Freedom
Foundation. He will be leaving that organization at the end of
the week to join a new think tank specializing in high-tech
issues. Dr. Lenard has also served as the Office of Management
and Budget, the Federal Trade Commission, and the Council on
Wage and Price Stability.
Following him we will have Scott Cleland. Mr. Cleland is
the founder and President of Precursor, a consulting firm
specializing the technology and telecommunications industries.
Before founding Precursor, Mr. Cleland was Senior Policy
Adviser for the Secretary of State in the first Bush
administration, as well as Director of Legislative Affairs for
the Department of Treasury.
Finally, we will have Marc Rotenberg. Mr. Rotenberg is
Executive Director of Electronic Privacy Information Center, a
public interest research center focusing on protecting privacy
and civil liberties. Mr. Rotenberg chairs the ABA Committee on
Privacy and Information Protection, and he teaches privacy law
at Georgetown University Law Center.
We thank you all for appearing at this Subcommittee hearing
today, and now I would ask you all to stand and take the oath
and raise your right hand. Do you affirm that the them you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Drummond. I do.
Mr. Smith. I do.
Mr. Lenard. I do.
Mr. Cleland. I do.
Mr. Rotenberg. I do.
Chairman Kohl. Thank you.
Mr. Drummond, we will take your statement.
STATEMENT OF DAVID DRUMMOND, SENIOR VICE PRESIDENT OF CORPORATE
DEVELOPMENT AND CHIEF LEGAL OFFICER, GOOGLE, MOUNTAIN VIEW,
CALIFORNIA
Mr. Drummond. Chairman Kohl, Ranking Member Hatch, members
of the Subcommittee, it is my pleasure to appear before you
this afternoon to discuss recent developments in the online
advertising world. Thanks for inviting me to testify here.
Chairman Kohl. Is your button on?
Mr. Drummond. Sorry. The online advertising business is
complex, but my message to you today is simple: Online
advertising benefits consumers, promotes free speech, and helps
small businesses succeed. Google's acquisition of DoubleClick
will help advance these goals while protecting consumer privacy
and enabling greater innovation and greater competition.
Now, in our experience, users value our ads because, like
our search results, they connect them to the information, the
products, and the services that they seek. Our online
advertising promotes freer, more vigorous, and more diverse
speech. We know that many bloggers and many website owners
actually can afford to dedicate themselves full-time to that
endeavor because of online advertising. In fact, last year, we
paid $3.3 billion in advertising revenue to our website
partners, and it is a great satisfaction to us that we are able
to help this proliferation of online speech and activity.
Now, our advertising network also helps small businesses
connect with consumers that they otherwise would not be able to
reach and to do so affordably, efficiently, and effectively.
Let me give you an example. Allen-Edmonds, the shoemaker in
Wisconsin, is a great example of how this works. Allen-Edmonds
has frequently appeared as a sponsored link or ad to people
searching for terms like ``men's dress shoes.'' Now, according
to Allen-Edmonds' marketing director, the company's online
sales rose 40 percent in 2005 because of the type of
advertising that Google does. Mr. Chairman, there are thousands
of other companies throughout America--most of them very small
businesses--that also advertise with us.
Now, we believe our acquisition of DoubleClick will help us
provide even more benefits to consumers, support even more free
speech, and help drive the success of even more small
businesses throughout the country.
By combining our advertising network with DoubleClick's
display ad serving products and technology and by investing the
resources in the display ad business, we think we will be able
to provide better and more relevant advertising to consumers
and to help publishers and advertisers generate more revenue.
All of this new economic activity will fuel the creation of
more rich, more diverse content on the Internet, which, of
course, benefits consumers and society at large.
Now, let me address the issue of competition. We are
confident that our purchase of DoubleClick does not raise
antitrust issues because of one simple fact: Google and
DoubleClick do not compete with each other, despite what some
might be saying. DoubleClick does not buy ads, does not sell
ads, does not buy or sell advertising space. What it does do is
provide technology tools that enable advertisers and publishers
to deliver and manage ads once they have come to terms, and
there are many, many others who do these sorts of things.
The simplest way to look at this is by using an analogy.
Google is to DoubleClick what, say, Amazon is to FedEx. Amazon
sells books; FedEx delivers them. And, by analogy, we sell ads;
DoubleClick delivers ads. Two different businesses.
Our acquisition of DoubleClick does not foreclose other
companies from competing in the online advertising space.
Recent acquisitions in the space by Microsoft, $6 billion
acquisition of aQuantive, which was a competitor of
DoubleClick, acquisitions by Yahoo, AOL, and others are strong
signals that the market believes this space has a lot of room
for growth and a lot of room for competition. Beyond the recent
acquisitions, there are thousands of companies that are
competing in selling online ad space.
Now, despite what they are saying here today, Microsoft
actually appears to agree with this. Brian McAndrews, who is
Microsoft's Senior Vice President of the Advertiser and
Publisher Solutions Group, and before that the CEO of
aQuantive, recently commented that the online advertising space
is, and I quote, ``in the first or second inning of a long game
here.'' He goes on to say that, ``There's no monopoly on
innovation. I don't think you're going to see two or three big
players and then game over. There will continue to be a broad
range of companies.''
We certainly agree with that, and if it were one stray
comment in an unguarded sort of moment by a Microsoft
executive, it would be one thing. But we have compiled a
lengthy list of similar statements from Microsoft senior
executives all made after the announcement of the DoubleClick
transaction and after the aQuantive transaction, and they
completely contradict what Microsoft is saying here today.
Really, it seems like the only place that Microsoft is
making these arguments about fear of declining competition in
the online spaces here in Washington. I would be happy to
discuss this list of quotes during Q&A or to submit it
following the hearing, with your permission.
Now, my final point today is that Google will continue to
protect its users' privacy. For us, privacy does not begin or
end with our purchase of DoubleClick. Privacy is a user
interest that we have been protecting since our inception, and
we will continue to innovate in this area. We spend a lot of
time designing our products on the principles of transparency
and choice--transparency about what information we collect and
how we use it, and user choice about whether to provide us with
any personal information at all. We were the first leading
Internet company to decide to anonymize IP addresses and
cookies in our server logs after 18 months. Most of our
products allow people to use them anonymously and do not use
any personally identifiable data unless we fully disclose that
use in our privacy policy. We support Federal privacy
legislation and the development of global privacy standards
that can help build consumer trust and confidence in the
Internet. We will also participate in the FTC's upcoming Town
Hall on privacy in online advertising, which we think is a
great vehicle for further examination of this subject.
In looking to innovate in this area, looking ahead, we are
approaching our entry into the ad serving business with a fresh
eye. Here are some examples of the privacy protections and
innovations we are working on in third-party or this ad serving
business.
We will be included an opt-out mechanism so that people can
choose not to have an advertising cookie place on their
computer, and our industry-leading decision to anonymize logs
data after 18 months will also cover any log data generated in
our ad serving programs that we are testing now.
We are exploring the use of what we are calling ``crumbled
cookies'' so that user data is not stored just in one cookie,
which I know concerns some people.
And we are working on better forms of notice within as so
that users can better understand who is behind the ads that
they see.
Now, some of these ideas are experiments, and like all
experiments, they may or they may not work out. But we are
excited to start innovating in this area for our advertising
customers and for our users to deliver better ads for them.
Now, as I conclude my testimony, I will note that a lot of
this activity--it seems like a lot of activity, and you may
wonder why we focus on it. For one reason, protecting privacy
is really part of the Google culture, and it is also a priority
because our business simply depends on it. If our users do not
trust us with the way we manage their information, they simply
will not use us, and they are one click away from switching to
any other competing product.
I appreciate the opportunity to discuss these issues with
you in the question session, and thank you for allowing me to
testify.
[The prepared statement of Mr. Drummond appears as a
submission for the record.]
Chairman Kohl. Thank you, Mr. Drummond.
Mr. Smith?
STATEMENT OF BRADFORD L. SMITH, SENIOR VICE PRESIDENT, GENERAL
COUNSEL, AND CORPORATE SECRETARY, MICROSOFT CORPORATION,
REDMOND, WASHINGTON
Mr. Smith. Well, thank you, Mr. Chairman, for the
opportunity to provide Microsoft's perspective on these
important issues this afternoon.
We believe that the future of the Internet will be decided
by developments in online advertising. As you noted, Mr.
Chairman, online advertising is rapidly emerging as the fuel
that powers the Internet and drives the digital economy. We
estimate that online advertising spending is already a $27
billion business, and it is projected to double to $54 billion
in the next 4 years alone. To put that in perspective, that
will be roughly the same size as the television and radio
industries in this country today combined.
These changes, as you noted, Mr. Chairman, are not only of
tremendous economic importance, they have serious societal
implications as well. Online ads increasingly provide the
economic foundation for a free press and for political life
more broadly.
Now, I will be the first to admit that Microsoft is not
disinterested when it comes to this issue. Competitors never
are. But I do think we are in a good position to help identify
the right questions. We know this market well, and it is
absolutely clear to us that this merger raise serious questions
that deserve serious answers. I would like to address two
questions myself very briefly.
The first one is this: What are the economic implications
of allowing the largest Internet company in online advertising
to acquire its most significant competitor? While there are
millions of websites on the Internet and many, many
advertisers, as David notes, there are actually a very small
and declining number of intermediaries--intermediaries that
provide the tools and services that connect advertise and
website publishers together. These intermediaries play a
gateway or a middleman role, if you will, much like the natural
gas pipelines that connect refineries to distributors and
ultimately to consumers in their homes.
If you are a website operator and you want to sell ad space
on your site, or if you are an advertiser and you want to
display your ads, you have to work with and through one of
these intermediaries.
Now, already Google is the dominant company for one of the
two main types of online advertising: search online ads.
Roughly 70 percent of global spending on search-based
advertising today flows through Google's ad words service. If
Google is allowed to proceed with this merger, it will obtain a
dominant gateway position over the other main type of online
advertising: non-search ads--the non-search ads that are
displayed on websites that we visit.
Today, Google and DoubleClick are the two largest
competitors in this area, and as I hope we will discuss more,
they are competitors in this area. And yet, combined, Google
will account for nearly 80 percent of all spending on non-
search ads served to third-party websites. In short, if Google
and DoubleClick are allowed to merge, Google will become the
overwhelmingly dominant pipeline for all forms of online
advertising.
Now, this merger will undoubtedly result in higher profits
for the operator of the dominant advertising pipeline, but we
believe it will be bad for everyone else. It will be bad for
publishers, it will be bad for advertisers, and, most
importantly, it will be bad for consumers.
This leads to the second question I would like to address.
What are the antitrust and privacy implications of giving a
single company sole control over the largest data base of user
information the world has ever known? Online ads are typically
served based on user information, user data. As consumers, we
give up this data, often without knowing it, in exchange for
access to free content and services.
Today, it is generally believed that Google and DoubleClick
have amassed the two largest data bases of online user data in
the world. This country does not permit the phone company to
listen to what we say and use that information to target ads.
The computer industry does not permit a software company to
record everything we type and use that information to target
ads. Yet with this merger, Google seeks to record nearly
everything you see and do on the Internet and use that
information to target ads. Indeed, one question is whether this
merger will create a whole new meaning to the term ``being
Googled.''
These privacy issues, in fact, have antitrust consequences.
Given the nature and economics of online advertising, this
concentration of user information means that no other company
will be able to serve ads as profitably. In short, it will
substantially reduce the ability of other companies to compete.
I appreciate that the technology and business models are
new and dynamic, and I fully agree that the Internet is
continuing to change very rapidly. Yet, amidst constant change,
it is worth bearing in mind that one rule of the road has
remained constant in the 117 years since the Sherman Act was
adopted: We are all encouraged to work hard; we are all
encouraged to earn our way to success. But no one is permitted
to buy a dominant position by acquiring its single largest
competitor.
That principle has served this country well through
generations of new industries and technologies. The question
for this Congress and, indeed, for the Federal Trade Commission
and this country is whether we want to abandon that principle
now.
Thank you very much, Mr. Chairman. I look forward to
answering your questions.
[The prepared statement of Mr. Smith appears as a
submission for the record.]
Chairman Kohl. Thank you very much, Mr. Smith.
Mr. Lenard?
STATEMENT OF THOMAS M. LENARD, SENIOR FELLOW, PROGRESS AND
FREEDOM FOUNDATION, WASHINGTON, D.C.
Mr. Lenard. Thank you, Mr. Chairman. Thank you very much
for the opportunity to present my views on the important
competition and privacy issues raised by the Google-DoubleClick
merger. Although I haven't done the detailed economic analysis
that is often part of a merger review, from what I do know I do
not believe that this acquisition threatens to be
anticompetitive or harmful to consumers' privacy. I do think,
however, that Government interference with this evolving
market, which is still very much in its infancy, could be quite
harmful to consumers.
Google's purchase of DoubleClick is part of a spate of
recent acquisitions in online advertising where companies are
adding new capabilities in order to better serve their
customers and better compete with each other.
The FTC is doing a careful review of the Google deal, as it
should, but these reviews are much more difficult when the
markets are changing rapidly, as they clearly are here.
In many ways, Google epitomizes the digital revolution. As
you indicated in your opening remarks, Google's business model
was difficult to envision just a few years ago--an illustration
of the fact that the digital revolution is not just a
technological revolution, but it is also very much a revolution
in the design of business models and in the evolution of
markets. When technologies and markets are changing rapidly, it
is much more difficult to avoid policy mistakes.
Policymaker should do everything possible to create an
environment in which both the Googles and the DoubleClicks of
the future can emerge and thrive. For many entrepreneurial
ventures, acquisition by another company is a major way to
generate capital and pay off early investors. The most likely
acquirers are larger firms in the same or related sectors. And
it would not go unnoticed by early investors if antitrust
enforcement were to make it more difficult for the ventures in
which they invest to be acquired. Such a policy would raise the
hurdle for investment in these firms, with potentially adverse
effects on innovation in this critically important sector of
our economy.
Opposition to the Google acquisition has focused on two
arguments, both of which I think are flawed. The first argument
is the standard antitrust claim--that both Google and
DoubleClick have a large share of the activities that they
undertake, so a merger would create market power problems. But
I believe these firms are engaged in different activities, and
so that even if we believed that Internet advertising was a
market in antitrust terms, which is debatable since it still
comprises only about 5 percent of all advertising, the firms
will not gain market power from this merger because they don't
have business in common.
Google sells text ads mainly on their own websites and
search result screens. DoubleClick sells the technology that
delivers display ads from advertisers to websites and evaluates
the effectiveness of the ads. DoubleClick does not sell
advertising space or control any websites. Thus, even if we
believe that Internet advertising is a market (which itself is
highly debatable, since even with its growth it still comprises
only about 5 percent of all advertising) the firms will not
gain any market power from this merger since they do not have
any business in common.
The second argument concerns privacy where privacy
advocates allege that Google's and DoubleClick's conduct ``has
injured consumers by invading their privacy.'' But there is no
evidence to support any assertions that consumers have been
harmed or would be harmed.
The great appeal of the Internet as an advertising medium
is the ability to target ads to consumers much more precisely
than can be done through other media. Using information from a
variety of sources, including sometimes the past history of
Internet browsing, Internet advertisers can develop an
understanding of consumers' interests, deliver ads that are
most useful to them, and avoid delivering those that are of
less interest. More information can facilitate more precise
targeting, and all of this serves consumers well.
In addition, the revenues from online advertising support a
variety of valuable services provided to consumers at no charge
by the companies represented here as well as many others, such
as search services, free e-mail, and content that is customized
to the individual. Internet advertising firms also provide
customized advertising to smaller websites that use the
revenues to support themselves.
In my view, antitrust and privacy are really separate
issues, but some people have tried to connect the issues by
arguing that the aggregation of data serves as a barrier to
entry. The argument seems to be that the aggregation of data
would enable Google to provide a better service and do so more
efficiently and, therefore, it would be more difficult to
compete against the company. Whether or not that is true, we
need to approach such arguments with great caution because they
go the heart of what we want our competitive economy to do,
which is provide consumers with better goods and services at
lower cost.
The worst thing antitrust enforcers or any other
policymakers could do is to implement policies that prevent
companies from getting too good at what they do because it
makes it harder to compete against them. That might be helpful
to some competitors, but the goal of the antitrust laws is to
help consumers and not competitors.
Thank you.
[The prepared statement of Mr. Lenard appears as a
submission for the record.]
Chairman Kohl. Thank you, Mr. Lenard.
Mr. Cleland?
STATEMENT OF SCOTT CLELAND, PRESIDENT, PRECURSOR LLC, MCLEAN,
VIRGINIA
Mr. Cleland. Mr. Chairman, thank you for the opportunity
and the honor to testify. I am Scott Cleland, President of
Precursor LLC. The views expressed by me in this testimony are
mine alone and not the views of any of my clients.
The online advertising market is rapidly consolidating and
becoming highly concentrated. Yahoo has bought Right Media,
Microsoft bought aQuantive, Google has bought YouTube, Ad Scape
Media, DoubleClick, Feed Burner, and others.
Now, I have done the in-depth work on this and on the facts
of the case, and of all the recent mergers, I believe Google-
DoubleClick is uniquely anticompetitive and really represents a
watershed moment for Internet competition. I think it is
clearly one of the most far-reaching, least understood, and
most important mergers this Subcommittee will ever review.
The biggest challenge here, Mr. Chairman, is to see the
forest for the trees. Online advertising is the only proven
business model for monetizing Internet content. Also, the
Internet is the ultimate network of networks, so in antitrust
terms, it also creates the ultimate network effect of network
effects. Essentially, network effect is the positive feedback
loop where the looter extends one's lead.
Now, in a nutshell, this merger creates an exponential
network effect in that the merger expand Google's network of
viewers, advertisers, website publishers, and data.
Now, the biggest risk for Congress and the FTC is missing
the critical importance of the essence of online advertising,
and that essence is the exceptional interconnectedness and
interrelated segments--networks, people, products, services,
and technology. They are all webbed together.
Now, the traditional concept in antitrust wants to have
separate markets, and I would argue be careful here because,
arguably, separate markets are the least applicable and most
artificial and contrived when they are applied to an Internet
business. Now, listen. I know others have said we are separate
markets, we do not compete. Be very wary when they say they are
separate when they are heavily interrelated by the same
viewers, the same advertisers, the same websites, and the same
core data.
Now, the analogy I would like to use is to argue that
search and display are separate markets and do not compete is
like saying your eyes and your ears do not compete for the
brain's attention. It makes no sense. Of course they compete.
This merger should also concern you, Mr. Chairman, because
every politician understands that information is power, and
Google openly aspires to be the world's most powerful
information broker. Listen to Google's on uniquely monopolistic
public vision in its well-known mission statement: to organize
the world's information and make it universally accessible and
useful. No other entity in the world currently has such a naked
ambition to control and effectively corner any world commodity,
let alone the world's information, both public and private, and
have the wherewithal--infrastructure, technology, capacity,
expertise, and acquisitions--to actually pull it off.
What I ask you is: What checks and balances would exist to
Google-DoubleClick's web of market power over the world's
information? The combined Google-DoubleClick merger would have
little accountability to consumers, to competition, to
regulators, or even third-party oversight.
So what is my recommendation? Oppose the merger. This is
not a hard antitrust call, in my view. In my 15 years of
relevant experience, I have never seen a merger that
facilitates such extreme global concentration, both
horizontally and vertically simultaneously, generates more
powerful and cumulative network effects or increasing barriers
to entry, tips so many sub-segments to substantially less
competition. Let's talk search, text ad serving, contextual ad
serving, graphic display ad serving, rich media video ad
serving, consumer behavior data, ad publishing analytical
tools, cross-market performance analytics, ad brokering, and ad
exchanges. I have never seen anything like this. I have never
seen anything that accelerates a dominating platform effect so
quickly and so completely where dominance in one segment can be
cross-leveraged to dominate related segments. And, finally, I
have never seen anything that forecloses more actual and
potential competition.
Another thing. Conditions will not work here. They would
prove futile and they would prove counterproductive, and I
actually think it would result in the worst of all scenarios,
which would be a slippery slope toward Internet regulation.
So why should you oppose this merger? Very simply, bottom
line, if a business wants its content to succeed on the
Internet, it would have no choice but to use the Google-
DoubleClick-YouTube online advertising platform. No real
competitive choice.
Now, I have said a lot of things in my short remarks here.
I do have six charts that, if it pleases the Chairman, in Q&A I
can go into in depth and explain the Internet choice paradox,
the extreme concentration, the extreme media concentration, the
tipping point that this creates, the bottleneck this creates,
and then, last, the extreme market power it creates.
Thank you.
[The prepared statement of Mr. Cleland appears as a
submission for the record.]
Chairman Kohl. Thank you, Mr. Cleland.
Mr. Rotenberg?
STATEMENT OF MARC ROTENBERG, EXECUTIVE DIRECTOR, ELECTRONIC
PRIVACY INFORMATION CENTER, WASHINGTON, D.C.
Mr. Rotenberg. Mr. Chairman, thank you very much for the
opportunity to testify today, in particular for considering the
privacy implications of the Google-DoubleClick Merger. There is
no question that the merger has enormous economic consequences
for the two companies and its partners, but I think the
greatest consequences will be felt by Internet users around the
world whose privacy interests will be clearly implicated by
whatever outcome we see.
EPIC, my organization, has played a significant role at the
Federal Trade Commission over many years trying to establish
strong privacy safeguards for consumers and for Internet users,
and what I would like to do this afternoon is briefly summarize
some of the key cases that we have been involved with as the
basis for the reason that we challenged the Google-DoubleClick
merger. I think it will help explain the significance of the
merger, the privacy interests at stake, and also the FTC's
authority to act.
I would like to begin by describing for you the fact that
we challenged a similar merger in the late 1990's when
DoubleClick sought to acquire a company called Abacus. At that
time DoubleClick was the Internet's leading advertiser, and we
were very impressed by the company. They made a point of saying
that they did not collect user-identified information, that it
was not necessary to make online advertising work, and they
represented in their privacy policy, as well as in the privacy
policies of all their partners, that there was no collection of
personal information taking place. It was on this basis that
many people accepted the DoubleClick business model.
It, therefore, came as a surprise to us when we learned
that DoubleClick proposed to acquire a data base marketing firm
called Abacus, which had large profiles on American consumers,
and DoubleClick proposed to merge the anonymous Internet
profiles with the detailed customer profiles contained in the
Abacus data base.
We filed a complaint to the Federal Trade Commission. We
alleged that the company had engaged in an unfair deceptive
trade practice. It was the first time, in fact, that the
Section 5 authority of the Commission had been invoked in the
context of consumer privacy.
The Commission undertook an investigation. There was a
modest settlement reached. DoubleClick agreed to abide by
certain privacy principles. Frankly, we were not very happy at
the time, but it was significant that it demonstrated that the
Commission could act on privacy matters.
Now, the second case which I will tell you about, which I
think is in some respects even more interesting, involves a
complaint we brought to the Commission in 2001 regarding
Microsoft. Microsoft's identity management system, Passport,
proposed a single sign-on for the Internet that would
essentially become the gateway for access to Internet content.
And we said that the privacy and security issues implicit in
the Passport proposal were substantial and implicated the
privacy rights of Internet users.
The Commission undertook an investigation and ultimately
issued a consent order, which Microsoft agreed to, and
Microsoft, since the time of that case has been bound by
significant privacy obligations because of the concerns about
the Passport system, even though it was not necessary for the
Commission to find in that case actual harm.
I will mention briefly we also brought the ChoicePoint case
to the Commission. That involved a large data broker. It engage
in lax business practices. The Commission found in our favor
and ultimately issued a $15 million judgment, the largest
judgment in the Commission's history.
So when we decided earlier this year to file our complaint
at the Federal Trade Commission, along with the Center for
Digital Democracy and the U.S Public Interest Research Group,
it was based on our familiarity with the FTC's authority to act
under Section 5. It was based on our concern about the privacy
interests that would be implicated in this merger. And it was
based on the information that we were able to obtain about
Google and DoubleClick's business practices.
Since the filing of our complaint, nothing has happened
that has led us to a different conclusion. In fact, all of the
information that has been revealed since April indicates that
there are greater data collection practices planned than were
originally proposed, and that our instinct about the privacy
interests implicated in the deal is something that others who
look at these matters also share.
For example, after the filing of our complaint, the
Consumer Protection Board in New York State wrote to the
Federal Trade Commission and expressed support for what EPIC
said, said the deal should be blocked. We learned that the FTC
itself had issued a second request in this merger review, which
we know from the Chairman's own analysis indicates a strong
presumption that the deal will either be blocked or modified.
And now we are seeing regulatory authorities around the world--
the European Commission, Australia, and Canada--moving to
undertake investigations of the privacy implications of this
deal.
Simply stated, it is our view that unless the Federal Trade
Commission imposes substantial privacy safeguards by means of a
consent order, this merger should not go forward. The privacy
interests are simply too great. The safeguards are not there.
This is going to be a real problem for the Internet if it is
allowed to stand.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Rotenberg appears as a
submission for the record.]
Chairman Kohl. Thank you very much.
Mr. Cleland, Google argues that DoubleClick does not really
compete with Google with respect to Internet advertising.
Google further argues that while Google actually sells the ads
appearing on its search results pages, DoubleClick does not
sell any advertising. It just provides the technology to place
ads for advertisers on websites.
Doesn't Google have a point, Mr. Cleland? And if so, how
could this merger harm competition or lead to higher rates?
Mr. Cleland. They certainly do compete, and basically what
we are talking about is how ads get served to a screen. And
Google serves those screens as text ads in a search bar and as
contextual ads. DoubleClick serves them in display, which is a
banner ad, or in video.
Now, those are the exact same function and technology that
is going that serves 1's and 0's from different companies
through a network and has them appear in different formats on
the screen that you see. They are doing exactly the same thing,
and they compete for the same ad dollars.
As I said before, they have the same audience, they have
the same set of advertisers they work with, they have the same
websites they work with, and they have basically similar data.
The analogy is a very powerful one. What I am trying to say
here is these are interrelated markets. It is like trying to
say that since my eye and my ear are separate body parts, they
do not have any interaction with my brain and they do not
compete with my brain for information. Of course, I may hear
something, I may see something, and we both know that you can
see and hear completely different things, and the brain must
sort out which is superior.
It is classic. What we are talking about is Google is going
to create a brain where it controls all the major networks.
Let's look at each one of these segments that I keep repeating.
It would take the Internet viewer audience from 65 percent to
about 90 percent. It would take the 90 percent of Google's
share, according to William Blair, of the advertiser community
and add 1,500 of the top global customers that DoubleClick has,
hundreds that Google does not have.
Then if we talk about websites, Google has about a million
websites, and it would add 17 of the top 50 from DoubleClick.
And as other witnesses have described, the two biggest online
data bases of consumer behavior would be added to, by far, what
would be the world's largest.
And so what I see here is to argue that they are separate
markets is preposterous. It is artificial, superficial, and
basically arbitrary distinctions, because also, let's look at
it here, this whole time Google explains and represents
themselves as working for consumers. Consumers do not pay
Google a dime. Now, generally we would think that the people
who pay you are the ones you work for. Google says they are
just one click away of losing a customer. That is not a
customer. It is a user, and the user pays their privacy in
order to use search.
So I do not buy Google's argument. They are competitors.
Chairman Kohl. Mr. Drummond, in a minute I am going to give
you, and perhaps you, Mr. Lenard, a chance to respond. But just
to add on a little bit, Brad Smith, you said that DoubleClick
is the most significant and the largest competitor to Google.
Mr. Smith. Yes, absolutely, and we believe that.
Chairman Kohl. Do you want to amplify that a little bit?
Mr. Smith. Sure.
Chairman Kohl. Because Mr. Drummond does not think that is
true at all and Mr. Lenard does not think that is true at all.
Mr. Smith. I disagree with the premise in the first
instance that Google is only in the business of selling ads and
not in the business of delivering them or serving them. I just
went to Google's website myself at lunchtime today, and this is
all about their AdSense network. And if you go to google.com/
adsense, the first thing you are going to see is this. It says,
``AdSense for content automatically crawls the content of your
pages and delivers ads. You can choose both text or image
ads.''
And you can see this not only on Google's site. You can see
it on a number of other sites. I will show you a chart of a
website that we took a snapshot of the day before yesterday. It
is a popular social networking site called friendster.com, and
you can see on this page on the right two ads. The top ad is
delivered by DoubleClick, and the ad directly below it is
delivered by Google's AdSense Network.
To the best of our knowledge, if you buy an ad through
AdSense, it may sometimes be delivered by DoubleClick, but it
is also sometimes delivered by Google AdSense directly itself.
And what is more, if you look at what DoubleClick was doing
before this merger and what Google was doing before this
merger, they were each building out all of the pieces in the
pipeline, the piece that connects with publishers, the piece
that connects with advertisers, and this electronic exchange in
the middle.
So I am not persuaded myself by Google's analogy. I think a
better analogy is this: Google is already Amazon and is already
FedEx. Now they are proposing to buy the post office. I think
if that happened, not only Barnes & Noble but every book buyer
in the country would have a real problem.
Chairman Kohl. Mr. Drummond, would you like to take those
two arguments and rip them into shreds, please?
[Laughter.]
Mr. Drummond. Sure. I will give it my best shot, but first
I guess I have to express a little bewilderment. I keep hearing
that DoubleClick is our single largest competitor over and over
again, and when I heard single--I showed up at a hearing about
a DoubleClick transaction, and it appears to be a hearing about
our acquisition of Microsoft.
There is a lot of rhetoric being thrown around here, but we
have got to be clear, and I can even use Brad's prop here to
make the point.
We are very different than DoubleClick. We have never sat
around the boardroom and talked about our competition with
DoubleClick. It is a very different business.
We sell ads--we sell largely search ads. We do not actually
participate in this display ad segment very much. We very much
would like to, and that is part of the reason we purchased
DoubleClick because of their tools.
DoubleClick does not sell any ads. When you see an ad from
DoubleClick, all they do is deliver it. The buyer of the ad,
the seller of the ad have already gotten together and done the
deal together. DoubleClick has nothing to do with that, and all
they do is deliver the ad.
Conversely, we do not sell any ad serving products. Yes, we
have our own fleet of trucks, but we don't operate any truck
delivery services to anyone else. So these comparisons are
quite specious. They are very different markets, and they
simply do not overlap.
This notion that DoubleClick is our biggest competitor
seems strange in light of the total revenues that DoubleClick
generated in their ad serving tools business--about $143
million in revenue last year in North America. That hardly
seems like the kind of business compared to Google and compared
to Microsoft and others that would serve as our biggest
competitor.
I think you need to think about it a little differently.
What seems to be being said here is that because the
DoubleClick tools are used by some sellers of ads and some
buyers of ads, that, therefore, DoubleClick controls and
dominates this market, that is not true. It is no more true
than a delivery--a company that delivers trucks from, say, the
dock to the dealer, or cars, you know, controls the car or the
truck market. It does not. It is an enabler, and that is all.
So I think we need to be a little bit more precise with what we
are talking about here.
I also want to address this data base notion that is being
tossed about. The information that DoubleClick has is standard
Web information. It is not personally identifiable information,
that all Web companies, including Microsoft, and others, have
and collect. It is a very standard thing. DoubleClick cannot
use that data for anything else, and this data is not--this is
not a unique situation that gives Google some leg up.
Obviously, lots of companies are in this space. They are
competing in this space. Microsoft just acquired aQuantive,
which does all of the same things. They are now saying that
aQuantive is the leading ad serving company, bigger than
DoubleClick, so it is somewhat surprising to hear them say now
that DoubleClick has this vast trove that is greater than any
other data that anyone else has. And DoubleClick cannot do, by
contract with its customers, it cannot do all these things with
this data. And so it is just not something that we need to
worry about.
And I do need to say that, you know--I am not saying this
to say that this is not something that we should be looking at
in terms of, you know, the data that ad companies have, and we
are going to participate in the FTC Town Hall on this issue,
and we believe that that is the right way to go rather than
attempting to make this a single-company issue, which it
clearly is not.
I mean, when you look at the information--let's just unpack
this notion of Google having, you know, the biggest data base
or having this treasure trove of information. Microsoft already
has what it claims is the biggest ad serving company. It is,
with the acquisition of a Quantive, in addition the largest
purchaser of online ads. It has a destination site with
hundreds of millions of users, e-mail with 280 million or so
users, $1 billion or so in revenue from display advertising
compared to Google's very small amount. And this is not even
talking about any of the other products that Microsoft has.
I think they are pretty well poised--they have a lot more
information than Google has and, quite frankly, have announced
many, many new initiatives with behavioral targeting and the
like.
So I think what we need to do here is put things a little
bit more in perspective and look at the facts. Thanks.
Chairman Kohl. Senator Schumer from New York has joined us,
and I would like to call on him for remarks and questions.
STATEMENT OF CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE
OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman.
First, I want to thank you for holding these hearings. You
are always right there when there are issues that are of
importance in antitrust and other related areas. So I thank you
for holding the hearing, because given the high stakes and
important issues on all sides, it is appropriate to look at the
antitrust and other implications of mergers in this sector.
I am concerned about consumer privacy as these companies
which hold vast amounts of information do consider merging.
And, of course, Mr. Chairman, it has been amazing to watch
computer technology develop. It was not long ago when nobody
had personal computers. I remember in college I learned about
computers, and we had all these punch cards, and it took about
days to write a program and more days to punch in the cards,
and then it did not work. These big, huge machines like you
used to see in the movies in the 1960s, and now, of course, we
can hold them almost in the palm of our hand.
Of course, each of these new innovations brings new
challenges. They are all to the good. But there are challenges.
One of these is the complicated by interesting issue of online
advertising that brings us here today.
We cannot ignore the fact that an increasing portion of the
advertising dollar around the world is going to online
advertising, text or picture ads that show up every time we do
a search or go onto an ISP like AOL or Google. The companies at
issue here are some of the largest and most profitable in
America. It is my sincere hope that as they continue to grow,
they will use their expansions for the good of consumers.
But I want to make sure three things are addressed in the
online advertising deals, particularly this one, which has
relevance to New York: first, antitrust laws, as you are
carefully watching over, Mr. Chairman; second, privacy; and,
third, jobs in New York.
On the antitrust side, there are certainly questions about
what impact a merger such as this will have on the advertising
market. Those questions should be answered by this Committee,
Justice Department, and the FTC as they review this merger.
In addition, I have some concerns on the privacy side. As
the Internet expands, the amount collected about our personal
life grows. Some of it is collected to better target ads to
each of us.
So because of my concerns, I met with the Google CEO, Dr.
Eric Schmidt. I asked for a specific commitment from Google
that it will protect privacy following the merger given the
increased abilities and power that they have. And at this time,
Mr. Chairman, I would like to place into the record a copy of a
letter from Dr. Schmidt to me that lists some of the steps
Google tells me that it will take to protect privacy.
Chairman Kohl. Without objection.
Senator Schumer. Thank you, Mr. Chairman.
Google is looking for ways to provide users with better
forms of notice to help users understand what is behind the ads
they see. Google is looking into ``an opt-out mechanism'' in
the future so that individuals can choose not to have cookies
placed on their computers. And it is also experimenting with
new privacy protection features. For instance, they are looking
into the idea of using crumbled cookies so that the user data
is not stored in any one single cookie, one single place.
Mr. Chairman, these steps I think are important measures
toward addressing my privacy concerns, and I thank Google and
Dr. Schmidt for doing them. I am hopeful that Google will take
these steps as part of this merger and part of an ongoing
effort to protect privacy, because that is going to make
customers happy, so it is in your interest and everyone's
interests.
Google has also talked to me, Dr. Schmidt has, about
commitments of jobs in New York. Obviously, DoubleClick is a
New York company. Google has hundreds and hundreds of their top
researchers in New York, a lot of them at, I think it is, 111
Eighth Avenue, which is one of our high-tech buildings, and we
are very interested in growing a high-tech industry in New York
as best we can. And Dr. Schmidt has assured me that as a net
effect of the merger, the number of jobs is going to grow in
New York, which matters a great deal to me as well.
These commitments I think are significant and meaningful. I
thank Google for responding to my requests in this way. And,
Mr. Chairman, I thank you for having the hearing and thank the
witnesses for coming.
Chairman Kohl. Thank you very much, Senator Schumer.
Mr. Cleland, most analysts agree that as a result of all
these Internet advertising deals and the Google-DoubleClick
merger in particular, advertising will becoming more targeted
to a customer's interests and, therefore, more efficient.
Customers will get ads for products that they are more
interested in; advertisers will get access to people more
interested in their products; and websites will be able to sell
their ad space at the best possible prices.
Now, wouldn't you say that this is a good result for
consumers and for the economy as a whole?
Mr. Cleland. I think what this does is it brings to mind
the Internet content paradox, and if you can put up the first
slide here, what I really want to do here is I think there is a
lot of misdirection that is going on of trying to get--you
know, have people talk about--oops, not that one. I am sorry.
The first one. It would be the one on the other--the other
side. It's called the ``Internet Choice Paradox.''
The point I am making here is that Google represents itself
as working for consumers and gets everybody to focus on the
consumer side. You know, and that is a smart thing for it to
do. But it is not in the business, it is not being paid by
consumers not one dime. It serves advertisers.
And so what I would like to do is get people to understand
that the consumer side has many choices--free access to reach
any content. But on the business side, there is very little
choice, and there is, you know, a bottleneck for that access.
And so how I would answer your question is that when you
talk about consumers, that is where they would like to take
this. But this is an antitrust hearing. This is competition.
This is talking about where is the competition. They say they
are one click away from somebody using another search engine.
They did not get paid dime one by that user that is leaving
them.
Now, on the other side, you know, they would be worried
about losing a big competitor, and what is going on with
Facebook right now, there is a fight between Google and
Microsoft over who will get access to that traffic, that large
website. That is where the action is. It is on the business
side. And all this talk about the consumer side in an online
advertising model where consumers do not pay for the service I
consider a huge misdirection. And that is why I put together
this slide to focus people: Competition issues are on the right
side on the bottleneck access to online advertising.
Did that answer your question?
Chairman Kohl. Somewhat.
[Laughter.]
Chairman Kohl. Mr. Drummond, after Google's deal to acquire
DoubleClick was announced, Google Deputy Counsel Nicole Wong
stated that Google hopes to ``integrate the two companies' non-
personally identifiable data'' in order to provide ``better and
more relevant ads for consumers.'' This makes perfect sense. As
you gain more and more information about consumers, you will be
able to do a better job of targeting ads. Both Google and
DoubleClick collect a huge amount of information on consumer
preferences, including what websites they search and what
advertising they view online. How could any new entrant without
such access to consumer information possibly be able to compete
with the combined Google-DoubleClick? Doesn't the tremendous
amount of information that will be held by the combined Google-
DoubleClick after the merger constitute a barrier to entry to
any new rival entering this market, a huge barrier to entry?
And isn't, in fact, that one of the goals that you wish to
achieve?
Mr. Drummond. Let me address. No, that is not true. We do
not have a unique--or a stranglehold on all of the information
out on the Internet for purposes of--for online advertising
purposes. There are many--there are other competitors in this
space; aQuantive is a big competitor to DoubleClick, has the
same kind of data. There is simply no way for us to--there are
ample ways for others to come into this market.
Again, if you look at the data that Microsoft has--
Chairman Kohl. But I just want to be sure we--isn't it true
that one of the offshoots of this merger is that it will make
you a much stronger player in the whole field?
Mr. Drummond. Well, we hope that it will help make us
stronger in a field that we have actually been fairly weak in,
and that is in display advertising. You know, one of the things
we hear from customers is that they would like all of us to
offer more integrated solutions that have an ad serving
component, that have the ad placement components, as well as
selling and placing--selling the ads.
Now, Microsoft and Yahoo and AOL are all going down the
same path, and it is really in response to a customer demand,
and that is why you are seeing a lot of these transactions in
the marketplace.
So, yes, we definitely want to be a stronger competitor in
display advertising where there is enormous, enormous
competition. There are some incumbent larger players, such as
MSN, such as AOL, such as Yahoo. We are not one of them. But
there is a lot of competition in that space, thousands of sites
that are selling advertising space. So we think it is a great
space. And all of the companies are moving forward with ideas
about better targeting to create better ads. And, yes, that
uses some of the data that is created in the process.
But I have to tell you that when people come here and say
that DoubleClick is the only place that has this data, it is
just not true: aQuantive has this data; lots of other folks
involved in ad serving have this data as well. So this is not a
barrier-to-entry issue.
Chairman Kohl. Mr. Cleland?
Mr. Cleland. Could I reply to that? Could you pull up the
chart that says ``A Tipping Point''? Let's look at the world
from a competitor's standpoint, and look at what this does.
What do people want when they buy advertising? They want an
audience, and they will pay for a larger amount if they have a
larger audience. So in this instance, Google's--you know, 65
percent of Internet viewer share would be--they would get 25
percent of the share that they do not have, up to about 90
percent, according to my estimates. And if you are a website,
what do you want? You want to have access to lots of
advertisers, and you are willing to pay for that, and that is
what you seek.
Well, they have got 90-percent share of the advertisers,
and this is going to give them hundreds of the ones they do not
have. So once again, if you are a website, who are you going to
turn to? You are going to turn to Google because they are the
only game in town that can give you access to all of the
world's advertisers. If you are an advertiser globally and you
want to reach all of the consumers, you have got to go to
Google because they have gone from 65 to 90 percent. And
Microsoft, Yahoo, and the others? Baby stuff relative to those
numbers.
Then if you look at the consumer data that they combine,
remember, these are network effects upon network effects. And
it is acquisition. If you deconstructed this and asked Mr.
Drummond how long would it take them to replicate organically
what DoubleClick has, it would take them years. And ask them if
DoubleClick could ever catch Google. They would say no, you
know, it is ridiculous.
So when you realize that what Google will get through
buying it instantly, they will own this market. They will
control it via acquisition.
Now, that is what the law--at least the way I understand
it, it says you cannot via acquisition substantially lessen
competition. And there is a tipping point here, and then in the
next slide--I will not talk about it, but what I would do is
explain very clearly that it facilitates a bottleneck, and it
talks about many of the same points I just made, but in a
different dimension.
Chairman Kohl. Yes, Mr. Smith?
Mr. Smith. Yes, if I could address that. I would not be
here if we did not believe that this merger does create two
very important barriers to entry. And I go back and say think
of this as a pipeline and think about it as something that, in
fact, is not all that different from other kinds of delivery
channels, even like the passive shipping issues that you have
been addressing, Mr. Chairman, in other contexts.
This pipeline has advertisers on the one end and website
publishers on the other. And the pipeline itself principally
has three broad components: there is a component that serves
the publishers, there is an exchange that is electronic that is
in the middle, and there is a component that serves the
advertisers.
Now, David keeps talking about aQuantive, but what is
important to keep in mind is aQuantive's business was
principally on the side of addressing the needs of the
advertisers. When you go to serving the publishers, the third-
party publishers on the Internet, aQuantive had a business that
was in single digits, DoubleClick has a business that was at
about a 50-percent share, and Google had a business that was
about a 30-percent share.
And keep in mind, yesterday Google was saying that they
were not in the delivery business at all. Today they have a
fleet of trucks. Yesterday they were saying they did not do
delivery of ads, and today when David answered your question,
he said they do not delivery very much.
The fact is they are in not only the business of selling
advertisements to publishers but delivering those ads. They
have in this business, this pipeline business, they have a
million customers who advertise. Microsoft has 85,000 or
thereabouts. The businesses are really not comparable today.
And so there is, on the one hand, this barrier to entry
that consists of what you might think about as the advertising
inventory barrier to entry. There are all of these ads. There
is also a barrier to entry that consists of this massive
accumulation of user information. And it all comes together not
only on these two ends, but in the middle.
In a lot of ways, this merger is like the--it would be like
combining the New York Stock Exchange and the Nasdaq. You know,
if the New York Stock Exchange and the Nasdaq were to combine,
somebody could build an alternative exchange, but would anybody
go there to take their company public? It is hard to believe
that would be the case. That is the kind of thing that will
result here.
Chairman Kohl. As I understand it, Mr. Drummond is
suggesting that these businesses are dissimilar and that there
really is not much synergy between one and the other. Are you
suggesting that he is being somewhat disingenuous here today?
Mr. Smith. I am not going to second-guess his motives. Off
the basketball court, we can be friendly. But I do respectfully
disagree with what he is saying.
Chairman Kohl. Are you a basketball player?
Mr. Drummond. I am not. I do not know where that came from.
Mr. Smith. Only when they are playing in Wisconsin.
[Laughter.]
Chairman Kohl. Mr. Drummond, go ahead.
Mr. Drummond. I am not sure where that came from, but I
have to say, I did not say that these were completely
dissimilar. They are certainly complementary businesses. We
would like to have an integrated offering that includes the
kinds of things and the kinds of ad serving tools for display
advertising, which Google does not have, and we would like to
add that to our product suite. The same reason why Microsoft
wanted to add aQuantive, that product to their product suite.
But it still is the case that we are not in the ad--we have
not been in the ad serving business to date, and just to say
that we deliver our own ads is not saying that we are in the ad
serving business. Every website--many websites have ways to
place ads independent of DoubleClick, of Atlas, aQuantive, or
anything else. So the fact that we happen to deliver ads does
not put us in the business.
No advertiser, no publisher, in evaluating their choices
for these ad serving tools, will sit down and think, Well,
should I purchase from DoubleClick, from Atlas, or from Google?
Google is not into the conversation because Google does not
have a product. So when you talk about competitors, you need to
talk about firms that are choices for a consumer. And there is
no choice here. They operate in completely different markets.
And the same goes on the advertising sales side. If you are an
advertiser and you are looking to sell ads on websites, you do
not come to DoubleClick to do that, because DoubleClick does
not sell any space. You go to websites. Many websites have
their own direct sales forces. You can go to advertising
networks such as Microsoft's ad center, Yahoo, to Google, and
lots of places like that. But the place that you would not go
is to DoubleClick or to an ad serving company. You would use an
ad-serving company perhaps, but you would not--and you have
many choices there, but you would not use Google. And I think
that is being lost over here, but it is clearly the case that
these are very different, complementary but very distinct
businesses.
Chairman Kohl. Senator Hatch?
Senator Hatch. Thank you, Senator.
Mr. Drummond, with respect to the broadband service market,
Google seems to contend that consolidation harms consumers and
``downstream'' application service providers. At least that is
the way I have interpreted it. Yet the Google-DoubleClick
merger represents a much more significant concentration of
Internet advertising market share.
Now, why are there too few players in the broadband service
market, but why won't the Google-DoubleClick transaction create
too few players in the Internet advertising market?
Mr. Drummond. Well, Senator, I would be happy to address
that. These are very different businesses, very different
markets. I think in the broadband sector, it is apparent to all
of us that we have very few choices for our broadband service.
In many markets, you have two choices, and in many, many
markets you have just one.
That is simply not the case in online advertising. In the
markets that--in the sale of ads, which is what Google does,
there are many, many choices. There are display ads; there are
search-based ads; there are many, many outlets to get those
ads. And so we simply do not have that same dynamic.
This acquisition changes that not at all. As I said, by
acquiring DoubleClick it does not reduce the choices of anyone
who is looking for ad serving technology products. It does not
reduce the choices of anyone who is looking to buy or sell ads
because DoubleClick simply does not do that. So these are very
different markets. You are talking about one market where there
are few players that the customers, the consumers can touch,
and one in which there are multiple players. And they are only
growing, not shrinking in many ways.
Senator Hatch. OK. Mr. Smith, for as long as I can
remember, Microsoft has stated that an entrepreneur operating
from a garage could put your company out of business,
astounding as that sounds. But I understand what you are
saying.
Whether or not that is true, it strikes me that a similar
statement could be made of Google. If someone writes a better
search algorithm, Internet users will merely jump to the
entrepreneur's site and perform their searches there. Simply
put, if Google does not have Internet users using its search
engine, then it does not have anyone to advertise to. In
addition, DoubleClick's percentage of the overall Internet
advertising market is much smaller by comparison.
So I think we have to ask: What is the concern? If
Microsoft or another company comes along and creates a better
search engine, Google might not be as dominant a player in the
market as it is today. Now, if that is true, again, where is
the this problem? Why not just build a better product? Have you
not just purchased a DoubleClick competitor? This is a lot of
questions and I--
Mr. Smith. That is a very good question, Senator, and if we
believed that this was a market where better technology or
better value by itself could carry the day, I would not have
come here today. But that is not the market that we are dealing
with.
Indeed, if that were this market, Microsoft would not have
paid an 83-percent multi-billion-dollar premium to acquire a
Quantive, and I do not think that DoubleClick would have sold
for the premium that it sold for. This market is consolidating.
And we certainly believe that when this consolidation is
finished--and it is going to be finished very quickly--we are
either going to have one company that provides the pipeline for
online advertising, or we will have two, or maybe we will have
three. I cannot imagine more than three. I am skeptical that we
will even have as many as three.
And once we reach that point, I do not think that better
technology or better value can make a difference. The barriers
to entry created by the accumulation of all of the inventory in
the ads and all of the user information is too great. It really
is, as I was saying before, Senator, it is like the combination
of the New York Stock Exchange and Nasdaq. Somebody could offer
a better stock exchange, but if that one exchange were to come
into existence and had all of the brokerage relationships and
all of the purchasers in the country, why would anybody take
their company public anywhere else? That very much, I believe,
is analogous to this situation.
Mr. Cleland. Senator, could I also answer that question?
Senator Hatch. Sure.
Mr. Cleland. One of the most preposterous notions I have
heard is Google saying that, you know, any day a new search
engine could come and knock them out. Let's break that down.
What Google has is the world's largest infrastructure and a
parallel processing grid. It is a supercomputer. There are a
million customized servers that Google has bought and dispersed
around the country, and those million servers copy every single
page, at least reported by the New York Times, every single
page of the Internet every day and keep it stored and
recovered. That is how you can get, you know, a very quick
response.
They also have a million advertisers, or a million websites
they deal with. They have 90 percent of the advertisers. They
have 650 million users and 80 percent of the data on consumers'
usage patterns in order to do targeted advertising.
Now, I would say the accumulated aspect of two guys or one
guy in a garage, it would require, you know, tens of billions
of dollars and years and years for them to replicate something
that could compete with Google. It is not just what search
engine you have. If that was true, ask.com would be really--you
know, they made some tweaks to their engine, and they would be
improving. Or Yahoo, when it tweaked and improved its search
engine, which it used to outsource to Google, it would be
better. But the cost, the barriers to entry, are just enormous
about what Google does.
Hopefully that was helpful.
Senator Hatch. It was.
Mr. Smith, much has been made about how Google and
DoubleClick maintain information to their users. With your
acquisition of--is it a Quantive?
Mr. Smith. Yes. That is right, a Quantive.
Senator Hatch. What other types of information will you
store, for how long, and what are Microsoft policies to
maintaining the privacy of Microsoft's users?
Mr. Smith. I think there are two things to think about,
Senator, in the context that you raise. They are both quite
important.
First, I would say that we need to think about this in the
context of this merger. This merger, in our opinion, is about
creating a single pipeline that has virtually all of the user
information on the Internet. And if things go in this
direction, we will no longer as consumers live in a world where
our user information is divided and held by a variety of
different companies. It will all be in the hands of a single
company. And so I think you are quite right to ask, OK, well,
what are the policies and practices of us when it comes to
protecting user information?
We announced new privacy principles in July. We built on
privacy principles that we have had in the past, and I believe
that they are--I would have to say I believe they are the best
principles that you can find in this industry. We said, for
example, that we will anonymize all user information, for
example, all of the IP addresses, after 18 months. Now, Google
likes to say that they were the first to anonymize information.
In fact, I do not believe that Google is anonymizing anything,
and I say that with respect, because, you know, all of our
computers basically have the equivalent of a phone number. It
is the IP address. It is basically nine digits.
What we announced at Microsoft is that after 18 months we
would delete that IP address, that phone number, in its
entirety. What Google announced was that they would take that
IP address after 18 months, and they would delete the last few
digits.
This very much reminds me of when I moved to Paris in 1993.
I quickly found that when you get a phone bill in France, you
get the list of phone numbers that were called from your house,
but the last four digits have been deleted. Apparently it was
considered socially awkward for spouses to be able to know who
was being called from their house. And yet any good divorce
lawyer in France can tell you that they can still figure out
quite a bit. It may make it harder, but it does not make this
information anonymous.
Mr. Rotenberg. Senator, may I speak to this issue?
Senator Hatch. Yes, sir.
Mr. Rotenberg. I did not raise earlier some of the privacy
concerns that we identified in Google's practices, but I think
it is appropriate now, and I think it is particularly important
because Google has made a number of representations to this
Committee, and I sense that as well in Senator Schumer's
remarks, regarding what it will do to safeguard privacy. But it
uses these terms such as ``anonymize'' very loosely.
Mr. Smith is correct. When Google says that it is
anonymizing the Internet protocol address, it is much like
taking the last two digits off a telephone number. In context,
it is very easy to re-create the identity of the computer tied
to the Internet. It is very similar with a cookie as well, and
we have actually put together an analysis, and our simple
conclusion is that what Google describes as non-personally
identifiable information, which is the information that it
retains on every single search query--and that is the Internet
protocol address, the cookie information, the date and time of
the query, the query search term. They describe all of that as
non-personally identifiable. That is actually a remarkable
claim because in so many different respects, that information
is uniquely tied to the Internet user who made the search
query. In fact, it is the reason that the Department of
Justice, for example, goes to search companies and requests
those files precisely to identify Internet users.
And I will say further I have recently had an exchange with
Dr. Schmidt, the CEO of Google. In the pages of the Financial
Times, he described his proposal to safeguard privacy for
Internet users. I published a response and explained that many
of the safeguards that Google is recommending will not
adequately safeguard the privacy interests of Internet users.
And this is precisely the reason that the pending complaint of
the Federal Trade Commission is so important. We need a much
clearer description of what the business practices will be of
this merged entity to ensure that the privacy interests of
Internet users will be protected.
Senator Hatch. Thank you.
Dr. Lenard, as you well know, one of the major concerns
about antitrust law is the creation of or enhancement of market
power. In the context of sellers of goods or services, market
power may be defined as ``the ability to profitably maintain
prices above the competitive levels for a significant period of
time.''
Now, market power may be exercised, however, not only by
raising price but also by reducing quality or slowing
innovation. Therefore, how can one argue that a standard
antitrust claim cannot be made if Google already controls 70
percent of the search advertising and if the merger is
permitted, Google-DoubleClick will account for nearly--well, I
guess nearly 80 percent of the non-search ads or display ads.
So I would like your opinion, and then I would like to give
other members of the panel an opportunity to respond as well.
Mr. Lenard. Thank you, Senator. There are several responses
to that. The first one, I think, is the one we have been
talking about a lot, that these really are not--this is really
not a merger between direct competitors, really for the reasons
that Mr. Drummond said. I mean, you do not--if the price of the
ad space that Google is selling goes up, you cannot substitute
for that by going to DoubleClick and buying, you know, ad
serving capabilities. They are just not direct substitutes for
each other. Obviously, what DoubleClick provides is an input
into the Internet advertising market, but it is not by any
means a direct substitute for what Google is supplying.
You know, the second thing gets to this--and this has not
been talked about that much. I mentioned it a little bit in my
statement. What we really are talking about here is providing
better quality for consumers. All of these companies are
integrating with other firms in an effort to provide a better
product for consumers. And the notion that--there is this
notion that maybe if Google acquires DoubleClick, the product
will be too good and it is going to be hard to compete against.
Well, as I said, I think that is really a risky proposition to
go down that road because we do not want to--you know, we do
not want to hold--you know, grab onto the belt of somebody who
is in the race and say, well, everybody, let's make them run a
little bit slower so everybody can catch up a little bit. That
would just provide all sorts of bad incentives to the system.
The other thing I think that has not been mentioned in this
so far is the customers, the people who buy--the firms who buy
advertising services. A lot of them are very big companies.
They are very sophisticated. They are very price-sensitive.
They buy from multiple suppliers. And if somebody starts
raising the price on them, they are going to go someplace else
very quickly, and that is going to discipline the market.
Senator Hatch. Anybody else?
Mr. Drummond. If I may, this notion of 80 percent of all
advertising keeps getting tossed around here as if it is some
kind of a fact. It is a made-up number. We have not seen any
support for it. I do not think there is any. And it relies on
this premise, which is utterly false, that DoubleClick somehow
controls some major sector of spending on display ads. It does
not control it. It does not get any--no one pays DoubleClick to
place an ad.
So to say that somehow there is this control or domination
of the display advertising business because as part of our
products we now have ad serving technology is just--is crazy.
Again, Brad talks about a $27 billion market potentially this
year in online advertising. Of course, a big chunk of that is
display advertising. And the entire market for ad serving
companies is about $300-some million. Those are the revenues of
the companies, you know, Atlas, DoubleClick, and everyone
combined.
How can it be that one participant in a $300 million market
controls and dominates a multi-multi-billion-dollar market? It
is impossible.
So, you know, I urge you not to be misled by some of these
numbers that are being tossed around today.
Mr. Cleland. I have to reply to that. If Google is
representing that this is the online advertising market, they
are going to have a very hard time making that case, because as
you know, the Congress for years has media ownership limits
that it restricts how much you can control a certain media, and
online is clearly a separate media. And Google--and there are
just reams and mountains of evidence of how Google has
explained how online advertising is better, because it is
targeted, it is relevant, and it is measurable; and that,
therefore, people should move ads off of TV, radio, and
newspaper, and move it online.
Now, if that is not different markets, I do not know what
is, because where the other advertising is just kind of
general, this is stuff that you can target to an individual
user, you can measure it, and they can argue that the consumer
might save more. That is relevant.
Now, the other point you made about extreme market power,
if you could put up that slide, what you have here is
extraordinary. You cannot just say these guys do not compete.
What we are talking about is an ecosystem, OK? They are going
to corner this market. Now, let's look--remember, online
advertising is an indirect market. Consumers do not pay a dime
to Google. There is a three-way transaction here. So you have
to understand it as a three-way-sided market. You have got
users, content providers' websites, and advertisers. Once
again, this merger adds the No. 1 and No. 2 Internet viewer
audiences, the No. 1 and No. 2 best Internet content website
networks, and the No. 1 and two best advertiser networks. And
what it does, because this is the brains of the Internet and
the brains of online advertising, what it will allow them to do
over time is on this platform cross-leverage, and as ads to
more to ad brokering and as ads go more to ad exchanges,
whether it is a pipeline, whether it is a bottleneck, whatever
we call it, they are almost all going to have to go through
Google-DoubleClick-YouTube.
And so this notion that there is lots of choice, a big
advertiser, if it wants to reach the world audience, it has got
to go to Google-DoubleClick. If a website wants to reach all
the advertisers out there, it has one choice. It has got to go
to Google-DoubleClick.
Thank you.
Senator Hatch. Brad?
Mr. Smith. If I could just make two points, Senator. I do
think it is helpful to be clear about what we are not talking
about and what we are talking about. We are not talking about,
in my opinion, whether Google should continue to have the
opportunity to innovate and develop a better product and
service. And I say hats off to Google. They have done a lot of
good innovation, and we have all benefited from that this
decade.
What we are talking about is not that but, rather, whether
Google can buy its way to what we regard as a dominant market
position. And also, we should be clear we are not talking about
buying up this entire $300 billion market for all of the
advertising in the world or even all of the $27 billion online
advertising business. We are talking about this pipeline. And
there are a lot of markets that are characterized by these
concerns about passive shipping or pipelines, for example.
The very first antitrust case ever brought against Standard
Oil was brought at a time when there were lots of different oil
wells owned by different people in the country. There were lots
of different people that were distributing oil to customers.
But what Standard Oil was accused of doing was basically
solidifying and monopolizing the railroad network and, thereby,
the pipeline for effectively moving oil downstream in the
economy. That is analogous to what we are talking about here.
I do believe that when you look at this pipeline, it is
absolutely fair and it is absolutely accurate to say that if
this merger is approved, Google will account for 80 percent of
the ads that are served to publishers.
Mr. Drummond. We will not account for that. The 80
percent--simply because some portion of online, of display
advertising is delivered using a tool from DoubleClick when
there are many other tools available does not mean that Google
accounts for. Again, no control over the advertising, no
ownership of the data that comes with that that is collected in
the process of the advertising. That data is owned by the
customers, publishers and advertisers, and DoubleClick or
Google cannot do anything with it.
It is simply not true that by doing an acquisition like
this there is some control of this display advertising market.
Senator Hatch. Well, this has been a very interesting
hearing. I am sorry I have been in and out, but I have been on
the floor all day and had to go back and forth. I have a lot of
other questions, but I think I will submit them, Mr. Chairman,
so that we do not keep these folks too long. But a very
interesting set of questions. You have very interesting two
companies here, and other companies involved, and I am
absolutely fascinated by your industry. We will just have to
see where we go from here.
Chairman Kohl. Thank you very much. I quite agree, Senator
Hatch.
One more question, Mr. Rotenberg, to you. Should there be
Federal laws to ensure that customer information from searches
and that from advertising information be kept separate? Should
we put conditions on this deal to ensure that information be
kept separate? What other conditions would you propose in terms
of this merger?
Mr. Rotenberg. Thank you, Senator, for asking that
question. One of the things that we have done in the various
filings that we have made to the Commission regarding this
merger is to propose a number of different remedies that the
Commission, we believe, could enforce through a consent order.
I think the most simple and most direct one is to say that
there should be enforceable privacy standards that safeguard
the information that is being collected, ensure that it is not
being misused.
Google has in various ways said that it shares that goal;
it is prepared to do that. Our view is that if that is the
company's position, this is the perfect opportunity, perhaps
even a unique opportunity, to get that in writing through a
consent order at the Commission and we would like to see it
happen.
There are, in fact, I think in our three different filings,
between 20 and 25 different recommendations we have made. One
of the recommendations concerns this very interesting issue of
data retention, and as you may be aware, there is a lot of
controversy today, particularly among users of the Internet,
about the amount of information that is being collected and
retained by these companies.
Now, to be fair to Google, it is very much a reflection of
the Internet architecture that some information needs to be
accessed by any Internet advertiser, generally speaking, to
respond to a query. That is basically--because of the stateless
nature of the Internet, if the Internet user was, in effect, a
new entity every time they went to a website, it would be
almost impossible to interact. Now, there are ways to get
around that, but, generally speaking, we understand why
Internet advertisers collect a little bit of information. The
question is: Why do they keep it for so long? Why is it
necessary, after they have answered the search request, after
they have provided the advertising links that their business
partners provide so that there is a successful business model,
why do they need to keep the information as long as they do?
So with respect to that issue, we actually think there is a
very good opportunity here as well for the Commission to
enforce much more sensible limits on the duration of
information that is kept by the search companies to protect the
privacy interests of Internet users. And we actually believe
that over the long term--the companies may not admit this
publicly, but I will be willing to bet they would say so
privately--they will protect themselves against some downstream
risks if they were not sitting on so much data, because I can
tell you several scenarios under which both Microsoft and
Google are genuinely concerned about the amount of information
they keep: one, a security breach. These are companies that
have brilliant people; the top computer security experts in the
world work for these companies. And, nonetheless, you know,
before this hearing, we happened to do a little search because
I thought you might ask me a question about Google's security
flaws, so I did a Google search. There are over 2,200,000 Web
pages on the topic of Google security flaws. The top ten all
describe very serious breaches that that company has
experienced. That is one reason, I suspect, they are genuinely
concerned about the information they keep.
The other, of course, is in the legal context. They can
always be compelled to produce information to someone else
under circumstances that they might otherwise choose not to
disclose that information. Now, we applauded Google last year
when they opposed a broad subpoena that the Department of
Justice sent to that company. We thought it was unnecessary, we
thought it was excessive. Google did the right thing by
opposing it. But we also said at the time that there was an
ongoing risk, as long as this company kept so much information
on Internet users, that the Department of Justice or anyone
else with legal process could come back in the future.
And so, you know, in answer to your question, Senator, we
think this is the ideal moment, the unique moment to enforce
meaningful privacy standards to limit the collection of
information on Internet users to make these business models
work, but also to ensure trust and confidence in our new
economy.
Chairman Kohl. A last comment, Mr. Smith? Or second to last
comment, then Mr. Drummond.
Mr. Smith. I would second Mr. Rotenberg's call for Federal
privacy legislation. We have been endorsing that for some time.
I have come here a number of times myself to encourage Members
of Congress to adopt Federal privacy legislation.
But I also think it is a mistake to think that as consumers
our personal information can be protected by law and regulation
alone. And in that context, I think one of the fundamental
issues in this merger is whether the marketplace and
competition will continue to play a role as well.
I think it is very disconcerting to think about a future
where all of our user information flows through only one data
pipeline, because if that pipeline is breached, the
consequences are enormous. If you look at the information that
is now flowing, it includes not only the simple things like
where we live and our date of birth, but it includes
increasingly medical health records, it includes our financial
records, it includes everything we are interested in on the
Internet, what we are looking for, what we are thinking. The
amount of information truly is quite substantial. We should not
have to rely on a single pipeline. Not only is there the danger
of what happens if there is such a breach, but we would lose
the role that competition plays.
One of the reasons we are having this dialog is because
Google and Microsoft and Yahoo and AOL and many others have an
incentive today to compete to offer consumers better privacy.
Competition is, in effect, the guardian of consumer privacy
needs today. And yet if this merger is approved, the ability of
that guardian to play this role in the future will be
dissipated quite substantially.
Chairman Kohl. Mr. Drummond?
Mr. Drummond. Thank you. Let me just say that I agree with
Brad's call for Federal privacy legislation. We are on the
record on that. We also believe there should be some global
standards so that there is not a patchwork of privacy laws
around the world that are very difficult to work with and make
it very confusing for consumers. So we are all for that.
We do not think that there should be conditions placed
here. This is an industry issue, and we think it should be
addressed, and we should be thinking about ways in which we can
make sure that there is continued confidence in protecting user
data while at the same time allowing the companies to innovate
and to deliver better services to users, which is what--you
know, users want those and users benefit from them, as do
advertisers and websites. That is why we think the upcoming FTC
Town Hall is so important, because it provides a great forum
for us to sit down and really work these issues out. That is
how these issues should be worked through, not in the context
of one deal in a big industry with many, many players, where
there are many other deals going on. We ought to look at this
in a more holistic manner.
And let me just close by saying one thing. There is no
pipe. You keep hearing about this pipeline, this single
pipeline with all of the data. Please do not be misled. There
is no such thing. When it comes to search, there are a number
of options for users. We all know that. We have been successful
because we have delivered a great service. There are other good
search engines, and they have been pretty successful, too. And
it is absolutely true that any user can, at a moment's notice,
go use another one, and they do all the time.
On the advertising side, whether it is ad serving or
whether it is display ads, there are all kinds of choices. And
any data that is collected through advertising, whether it is
from a technology maker or from a website itself, that is going
to be broadly distributed around the thousands of participants
in this market, the many, many participants in this ad serving
technology market, of which the No. 1, according to Microsoft,
is owned by Microsoft.
So I just want to be clear. This pipe that is being talked
about is very much a fiction.
Chairman Kohl. Well, gentlemen, we want to thank you so
much for coming today. The Internet is enormously powerful in
our world today and will become even more so in the years to
come, and this deal obviously will have an impact on that, as
well as other deals, and the rules and regulations that will
govern the Internet. These are very important questions in our
society, and I think we are privileged to have had such strong,
well-informed both advocates and objectors here today. It has
added a lot to the dialog, and I am sure there will be
additional rounds before this heavyweight fight is settled.
So we thank you all for coming, and this hearing is
adjourned.
[Whereupon, at 4:16 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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