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net.wars: The antitrust time warp

Government antitrust actions are typically a generation behind when it comes to something as fast-moving as the Internet. They can't help it; they're supposed to wait for evidence of actual harm. So when the issue was Microsoft tying things to Windows, the EU was still fretting about media player in 2004 and Internet Explorer in 2009.

This week, the US Federal Trade Commission announced it has found no evidence that Google exercises search bias at the expense of its competitors. However, the FTC did decide the company had misused some of its mobile phone patents and Google has agreed to let sites opt out of having their content scraped for reuse.

These things do matter – and it's churlish to complain that a government process designed to be slow and careful is…slow and careful - but they are at the very least incomplete: I'm less concerned about Microsoft's and Motorola's ability to compete with Google than I am if all of them lock out smaller companies. The FTC's requirement that Google stop preventing small companies using its advertising platform from signing up with competitors' platforms is to be welcomed. But for many consumers the battleground has already moved and the casualties as these large companies shift strategy to win at mobile and social networking will be all of us.

This week the Wall Street Journal highlighted Google's strategy of aggregating material onto Google+ pages in ways users do not expect. The integration of that service across all of Google's products is increasing every day, exactly as privacy advocates feared when the company coagulated its more than 60 privacy policies last year. At the corporate level this is, the Journal suggests, necessary for Google to compete with Facebook. Most consumers, however, use the two services for completely different reasons: we sign up for Facebook to share information with friends; we use Google services for specific tasks.

Then there's mobile. For the last month or so, I've been experimenting to see how far I could get with my new Android phone without tying it to a Google account. (I don't like feeling pwned.) On the one hand, the phone is perfectly functional: you can do all the things you actually bought the phone for, like email, SMS, phone calls, Web browsing, reading, listening to music, and taking pictures. What you can't do is download apps, even free apps without a Google Play Store account. Finding them elsewhere means increased risk of malware. Running anti-virus software on your phone, however, requires you to download the app from the Play Store. Or the Samsung app store, which, requires you to accept its privacy policy even just to search and to create an account if you want to download anything. Upshot: the security of this device, the class that is increasingly being targeted by cybercriminals, is dependent on our agreeing to tracking, to providing data for marketing purposes, and to any other conditions they care to impose. This sounds like a protection racket to me.

As Chris Soghoian (among others) has pointed out, the default settings for such things matter; most people will use what's put in front of them. So I note, for example, that on Android the only Web browser provided is Chrome, and within Chrome you can only choose Google, Bing, or Yahoo! as your default search engine. Adding DuckDuckGo, my default search engine of choice, requires me to root the phone to hack Chrome and violate the warranty or download a different browser, which means signing into the Play Store. (Actually, I did find a way to download Firefox onto my desktop, run it through an anti-virus checker there, and then transfer it to the phone for installation; but how many people are that stubborn?) Which means, accordingly, that the long tail of search engines might as well not exist for most Android users. How is this different from Microsoft and Internet Explorer in the early 2000s?

Note: this is not a subsidized phone. I bought it retail. If it's not going to be free as in beer, shouldn't it be at least a bit free as in speech?

Elsewhere, this week saw an interesting exchange between Evgency Morozov at the FT and Andrew Brown at the Guardian regarding Google Now. Morozov argued that in aggregating everything Google knows about you and delivering little nudges to be a "better person", such as a note of how far you've walked in the last month, it's becoming a corporate nanny on a scale of intrusiveness that a government could never get away with. Brown explores the human limits of that approach.

For the purposes of net.wars a more significant point is that Google Now demonstrates precisely why making informed decisions about our privacy is so hard. Who ever thought, when signing up for and diligently read the privacy policies of Gmail or Google calendar, or an Android phone – or even did all three and creating a Google+ page – that their data would be aggregated in order to chide you into walking more or that your Google+ page would suddenly assemble your various disparate postings across the Net as part of your profile?

These are the issues of 2013. And sadly, the FTC and the EU most likely won't get to them for another five years.