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Why US antitrust regulators should probe Google search

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Comment The word is that the US Department of Justice may sue Google over its proposed $700m acquisition of flight data outfit ITA Software. And we can only hope that the feds have far more than flight data on the brain. As it investigates whether Google could use its web search monopoly to erect a second monopoly in the flight search market, the DoJ must also ask whether the company could do much the same thing in who knows how many other markets.

In its recent paper analyzing Google's ITA acquisition (pdf), the American Antitrust Institute explores the deal's potential effect on flight search, but it also looks beyond this particular merger. "One has to wonder about antitrust scrutiny for any future Google acquisitions – including vertical acquisitions that might otherwise appear benign in traditional commercial settings," writes the AAI, a thirteen-year-old independent antitrust watchdog intent on protecting the American consumer.

"Questions about the prospect that Google might leverage a broader search monopoly into dominance of distinct vertical search markets through acquisitions seem destined to crop up again."

According to Robert Lande – a director of the American Antitrust Institute, a professor at the University of Baltimore law school, and former antitrust prosecutor with the Federal Trade Commission – the institute's added concern is that as Google moves into new vertical markets, its search engine will only become more dominant, further separating itself from its last real competitor: Microsoft.

"Our big fear is that as Google gobbles up these related markets, including the travel search market, that will sound the death knell for Microsoft," he tells The Register. "What happens in a world with one search engine?"

At the moment, neither Google nor ITA offer a vertical search service directly to internet users. But when you consider the Google web search monopoly – which controls an estimated 85 per cent of the market, if not more – a combined operation would seem to have all existing flight search firms "surrounded", in the words of Lande and the AAI. This threat is compounded by the fact that ITA supplies flight data to many of those firms, including Kayak and Orbitz. But as the AAI indicates, even without this wrinkle, Google's web search engine is a potential threat to fair competition whenever the company expands into a new vertical search market.

"Questions will persist if Google’s suspected online search monopoly is or is becoming entrenched, as will questions about how fairness and neutrality in something as complex and subjective – and necessarily lacking in transparency – as search engine algorithms can ever be monitored and effectively regulated," the AAI says.

Randy Stutze, who authored the institute's paper, says these questions can't be answered without more insight into how Google actually works. "These are questions that internal analysis is probably going to have to reveal. It's hard for outsiders looking in to know," he tells us. "With [DoJ and FTC] and their subpoena power, being able to look at internal documents, they can form a real opinion."

Stutze believes that as it probes Google's ITA deal, the DoJ must indeed look at whether Google could use its search engine to unfairly dominate vertical markets beyond travel. "It seems wise, in this case, to take a broader view," he says.

In the European Union, investigators are already working to answer these questions. As part of its EU antitrust complaint against Google, UK-based vertical search outfit Foundem has accused Google of transforming its search engine into an "immensely powerful marketing channel" for its own services. With its so-called Universal search setup, Google inserts links from its own services – including YouTube, Google Maps, and Google Product Search – into prominent positions on its search results pages.

"[Universal Search] allows Google to leverage its search engine monopoly into virtually any field it chooses," Foundem says in a FCC filing that mirrors its EU complaint, which remains under seal. "Wherever it does so, competitors will be harmed, new entrants will be discouraged, and innovation will inevitably be suppressed."

Google Product Search is a direct competitor to Foundem. Both are price comparison services, although Foundem also offers travel search, jobs search, and property search. But as Product Search received prime placement on Google's primary search engine via Universal Search, Foundem was practically unreachable through Google. In 2006, when Mountain View introduced a new algorithm that targeted vertical search engines, Foundem vanished from Google's search engine. The site was also priced out of Google's AdWords search advertising system when the same algorithm reduced its landing page "quality score", sending its minimum ad bid sky-high.

The added twist is that some vertical search engines were not affected by the new algorithms. Apparently, they were whitelisted, though Google refused to acknowledge this publicly. In its complaint to the EU, Foundem argued that the combination of Universal Search and the secrets of Google's search engine penalties created an unfair competitive landscape.

"You have an overwhelmingly dominant search engine," Foundem CEO Shivaun Raff has told us, summing up the company's complaint. "If you add to that that search engine's ability to apply discriminatory penalties - they're discriminatory because some services are manually rendered immune through whitelists - and you add the ability of that search engine to preferentially insert its own services at or near the top of the search results, all of that adds up to an unparalleled and unassailable competitive advantage."

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