Suddenly, everyone is gunning for Google

Episode 440 of the Cyberlaw Podcast

The big cyberlaw story of the week is the Justice Department's antitrust lawsuit against Google and the many hats the company wears in the online ad ecosystem. Lee Berger explains the Justice Department's theory, which is not dissimilar to the Texas Attorney General's two-year-old lawsuit. When you've lost both the Biden administration and the Texas Attorney General, I suggest, you cannot look too many places for friends – and certainly not to Brussels, which is also pursuing similar claims of its own. So what is the Justice Department's late-to-the-party contribution to this dogpile? At least two things, Lee suggests: a jury demand that will put all those complex Borkian consumer-welfare doctrines in front of a Northern Virginia jury and a "rocket docket" that will allow Justice to catch up with and maybe lap the other lawsuits against the company. This case looks as though it will be long and ugly for Google, unless it turns out to be short and ugly. Still, Mark reminds us, for Justice, finding an effective remedy may be harder than proving anticompetitive conduct.

Nathan Simington assesses the administration's announced deal with Japan and the Netherlands to enforce its tough decoupling policy against China's semiconductor industry. Details are still a little sparse, but some kind of deal was essential for the U.S. campaign to work. For Japan and the Netherlands, the details are critical, and any arrangement will require flexibility and sophistication on the part of the US Commerce Department if it is to work in the long run.

Megan Stifel and I chew over the Justice Department/FBI victory lap after they put a stick in the spokes of The Hive ransomware infrastructure. We agree that the lap was warranted. Among other things, the FBI handled its access to decryption keys with more care than in the past, providing them to many victims before taking down a big chunk of the ransomware gang's tools. The bad news? Nobody was arrested, and the infrastructure can probably be reconstituted in the near term.

Here's an evergreen headline: "Facebook is going to reinstate Donald Trump's account." That could be the opening line of any Trump-Facebook story in the last few months, and that is probably Facebook's strategy – a long, teasing dance of seven veils so that, by the time Trump starts posting, it will be old news. If that is Facebook's PR strategy, it's working, Mark MacCarthy reports. Nobody much cares about the return of Trump, and they certainly do not seem to be mad at Facebook. So the company is out of the woods, but for the ex-President it's a blow to the ego that is bound to sting.

Megan has more good news on the cybercrime front: The FBI identified the North Korean hacking group that stole $100 million in crypto last year – and may have kept the regime from getting its hands on any of the funds.

Nathan unpacks two competing news stories. First, "OMG, ChatGPT will help bad guys write malware." Second: "OMG, ChatGPT will help good guys find and fix security holes." He thinks they are both a bit overwrought, but maybe a glimpse of the future.

Mark and Megan explain TikTok's new offer to Washington. Megan also covers Congress's "TayTay v. Ticketmaster" hearing after disclosing her personal conflict of interest.

Nathan answers my question: how can the FAA be so good a preventing airliners from crashing and so bad at preventing its systems from crashing? The ensuing discussion turns up more on-point bathroom humor than anyone would have expected.

In quick hits, I cover three stories:

• First, my complaint about Gen. Milley's egregious and self-admitted overclassification of January 6th records. And the prospect that he may be investigated for it.
• Next, the Iran-Iraq-War-style, pity-they-can't-both-lose fight between James Dolan, the owner of Madison Square Garden, and the lawyers he's barred from the Garden. In a tactic that reminds me of Donald Trump, Dolan is doubling down on confrontation despite the mounting legal troubles it's created. I blame Daddy issues.
• Finally, Google has won at least one victory in Washington this week: It outmaneuvered the Republican effort to score points over Gmail's partisan spam filtering

Download 440th Episode (mp3)

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Comments

[Dr. Ed 2]

More on the James Dolan issue -- and I hope he gets sued.

Actually, if anyone wants to push it, could he be found in contempt of court for this?

[David Nieporent]

Actually, if anyone wants to push it, could he be found in contempt of court for this?

No.

[Michael D]

DOJ involvement in cases like this raises red flags. Did Google fail to bend the knee enough? That is my first thought.

[Michael P]

They're not a state actor, and even if they were you can't prove it, and even if you could there's no cause of action over what they did, and even if there was it's not a justiciable question.

[Nige]

Yes, you're going to have to come up with a rationale to fit it in to the standard right-wing myopia about these things. 'Not bend the knee enough' is as good as any.

[Krayt]

The purpose of government is to get in the way, to get paid to get back out of the way.

Google, and Microsoft before it, has been hassled for decades.

Stuff happens.

Congresspersons' accounts grow fatter at rates vastly exceeding their salaries.

Business continues.

This is a monstrous plague on humanity. They just have to hide it better here.

[Krayt]

Fundamental Theorem of Government: Corruption is not an unfortunate side effect of the wielding of power. It is the purpose of it from day one.

Any beneficial side effect is the lucky happenstance, the outlier.

The big lie for millenia has been thinking Evil Business harming little naive Mr. Smiths. That is a lie by politicians to help cover their kleptocracy. Redirect the people’s hatred against anyone but them.

The corruption seeks out business to get in the way of, and not because of noble reasons, though that is always the cover story.

[Nige]

'for millenia'

Wow, that long?

[Nige]

Ah, corruption, that's another good one. Or is it the same one? I guess they're interchangeable, depending.

[bevis the lumberjack]

Nige paraphrased - “the speech that is being suppressed is speech my nasty right wingers that I hate anyway, so it’s ok with me”.

Rights aren’t something the government is supposed to protect, they are something the government is supposed to allow or prohibit depending on the person trying to assert those rights. Unless the other side is in charge, of course. Then it’s fascism.

[Sarcastr0]

Lotsa words you're putting in other people's mouths.

[bevis the lumberjack]

Says the Kreskin of the internet.

[Sarcastr0]

I talk about comments people actually make.

Here, you responded to a comment by Nige and then explained to him what he actually said, followed by some more discussions of Nige's real thesis.

I do paraphrase what comments say, sometimes to highlight flaws in their logic. but I base it on what they actually say.

[bevis the lumberjack]

You constantly tell me I said stuff that I didn’t even think, much less say. Like 80% of the time. It’s a big part of your idiom.

Please, oh wise Kreskin, tell me what Nige meant by “standard right wing myopia about these things”. Was he not disparaging the thought that big tech is bending to the government?

[Sarcastr0]

Sure, but his dispariagement does not mean he supports all the shit you decided he does.

Moreover, his disparagement had a particular argument to it - what do you think myopia indicates?

If I tell you stuff that you don't believe, say that when I do. Don't use whatever beef you have with me to rationalize pulling this kind of strawmanning bull.

[Nige]

'Was he not disparaging the thought that big tech is bending to the government?'

Wow, you also have your own myopia that is indistinguishable from right wing myopia a lot.

[Nige]

'Nige paraphrased'

Wow, you missed the point of that quite comprehensively. Also, how naive of you to believe the right when they tell you their speech is being suppressed. Also, Google aren't government? (Yet...)

[damikesc]

Nige, isn't it odd that EVERYTHING conservatives have said about Twitter...ended up being accurate? Like incredibly accurate.

Do you honestly think that Twitter was an outlier?

[Sarcastr0]

Insisting everything conservatives said was right doesn't mean anything they said was right.

[Nige]

It is odd that they think it ended up being accurate, despite the twitter files not showing that at all.

[Dr. Ed 2]

If you look at past precedent -- Standard Oil and Bell Telephone, precedent is that Justice ought to be involved, at least as to antitrust.

Yes, their leftist bias and shoddy reporting doesn't help, but newspapers are failing because 90% of all new advertising dollars are going to Gaggle or Farcebook That's not good.

[Nige]

Newspapers are failing because billionaire owners have been maximising profits by shedding reporters and journalists by the ton.

[ReaderY]

On the General Miley issue, I think it’s important to remember the policy behind ex post facto, which applies to punlic officials with even more force than private citizens. We don’t criminally punish current or former top officials for past official conduct unless it is clear that such conduct was criminal at the time. General Milley had apparent authority to do the classification. And overclassification in general, and classifying to protect top people’s butts in particular, has been such common practice in this country that its criminal status is by no means clear. Intent matters here. General Milly doesn’t seem to have been conspiring with Trump to overthrow Congress. Rather, he was doing his job as he saw it and obeying the orders he thought he was required to obey. That makes a big difference.

[Dr. Ed 2]

Assuming that was Miley's intent -- and that involves facts not presented.

At the very least, if there was information denied to criminal defendants because it was classified, isn't that itself grounds for the convictions (or pleas) to be overturned? I've heard of Justice not prosecuting some espionage cases (or offering really good deals) because they didn't want to release classified information to the defense.

Doesn't the so-called "Brady Rule" apply here?

[Dr. Ed 2]

The other thing is that an active duty soldier (which Miley is) can be prosecuted for things like "conduct unbecoming" -- which no civilian can be. Hence, "conduct unbecoming" inherently becomes ex post facto in that it was merely "unbecoming" and not merely that which is "criminal" -- although remember also that the UCMJ goes beyond the criminal law in places.

Furthermore, Miley is a political actor -- and currently remains in office. It thus is inherently reasonable for the opposing political party to investigate his actions and to attempt to hold him accountable for the same...

[Tom for equal rights]

I will note that googles search engine is heavily biased toward googles preferred sites.

Did search on quality of cooking using induction stove top vs gas stove. 40+ links to benefits of reduced indoor air pollution based on faulting asthma study with nary a mention that the highly touted asthma study was seriously flawed.

[Beldar]

...