The long-awaited deal is significant because it concludes a multi-year investigation by EU competition authorities, and because it is the first time that Google has bent to government demands over how it presents its search results. The details of the five-year deal, which has yet to be formally announced, were reported on Saturday by the Financial Times.

The terms of the deal

According to the FT, Google’s obligations vary depending on the nature of the search results. The most onerous conditions relate to listings like travel or restaurants where Google has a clear financial interest. In these cases, the company must identify any search listings that are Google-owned, and also provide at least three links to competing search engines. For other Google-related listings that do not produce direct revenue — weather or news, for instance — the company must provide a label.

The labeling will involve markers like boxes, separate page placement and “hover links.” A third party will monitor for compliance with these and other parts of the agreement.

The deal also requires Google to honor requests from news agencies and other sites not to “scrape” their content for use in its search listings, and to provide assurances that it won’t punish these sites by deleting them from the search listings altogether.

The agreement also addresses Google’s advertising practices by preventing it from imposing exclusive ad deals on its partners, and by making it easier for those partners to switch their ad campaigns to rivals like Microsoft and Yahoo.

The FT has a detailed account of the obligations here.

A victory for the EU, the public or Google?

When the deal is formally announced by EU regulators, we can expect to see considerable spin from Google and its competitors about what it really means.

At this stage, it’s clear that the deal represents the largest regulatory imposition to date over Google’s search business, which is still the core of the company and its prime money maker. This amounts to a victory for the EU and its high-profile competition commissioner, Joaquín Almunia.

While Google will hardly be celebrating the regulations, the company could have fared far worse. The five-year deal, which is legally binding, means Google avoids the sort of heavy fines and bitter regulatory battles that ensnared arch-rival Microsoft for well over a decade.

Europeans consumers, meanwhile, are likely to continue using Google as they have done so far. Despite repeated accusation by groups and companies tied to Microsoft that Google manipulates its search results, there is little actual evidence that the company blatantly puts its thumb on the scale.

The agreement may, however, serve to give Google critics some peace of mind by providing legal assurances that their worst fears won’t come true. And, as the deal is not finalized, critics and others will have time to comment on its provisions.

A different outcome from America

One of the most noticeable features of the deal is how much it differs from the outcome of a similar investigation carried out by America’s Federal Trade Commission.

In a January report, the FTC concluded a two-year antitrust inquiry by announcing that Google had done nothing wrong in the field of search. While the FTC did extract a pledge the company related to patent abuse, this was more a face-saving measure for the FTC than a burden on Google. (Here’s a plain English summary of the US investigation).

Different laws in the US and EU explain the divergent outcomes. American antitrust laws, for instance, focus on harm to consumers not competitors — a different line of inquiry to what happens in Europe. America also has more robust speech laws. Google argued strenuously that its search results are protected by the First Amendment; the FTC likely folded its cards rather than risk losing a court case over the question.

Google also controls a higher share of the search market in Europe than it does in the U.S. — more than 90 percent, compared with around 67 percent.

According to a source familiar with the investigations, Google was also more willing to settle in Europe because a legally binding EU commitment  does not expose the company to civil lawsuits.

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“The mobile world is expanding and innovating at breathtaking speed, allowing consumers to do things that would have been hard to imagine only a few years ago,” recently resigned FTC Chairman Jon Leibowitz said in a statement accompanying the report. “These best practices will help to safeguard consumer privacy and build trust in the mobile marketplace, ensuring that the market can continue to thrive.”

The report is based on a workshop convened in May 2012 to elicit recommendations from players in different parts of the consumer mobile industry on how to better prioritize users’ privacy.

Among its findings, the FTC said 57 percent of app users have either didn’t install or uninstalled an app because they didn’t want to share their personal information, and that “less than one third of Americans” feel like they have control over how their personal information once input into their mobile device.

The next steps

The chief recommendations for mobile platforms owners:

• Ask before accessing a user’s location.
• Ask before accessing contacts, photos, calendar, or recording sound or video.
• Make each app have a “dashboard” that shows users what each app has access to.
• Develop an icon that will show users every time their personal data is being transmitted.
• Offer a Do Not Track option (like Apple’s Limit Ad Tracking feature in iOS) so users can choose to block advertisers, ad networks or developers see how they’re using apps on their phone.

For app makers:

• Make your privacy policy accessible via the app store it’s sold in.
• Ask before accessing personal information.
• Know how ad networks are accessing your users’ info.

For ad networks:

• Communicate how your tracking works to app makers, and help platforms develop Do Not Track tools.

The FTC report came out the same day as the commission came to an $800,000 settlement with iOS app Path over the illegal access of children’s personal information and violation of the Children’s Online Privacy Protections Act (COPPA).

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Path CEO Dave Morin. Photo by Om Malik

Path, the San Francisco-based startup that offers private social networking services, has reached a settlement with the Federal Trade Commission (pending judicial approval) on alleged violations of the Children’s Online Privacy Protections Act (COPPA). As part of the settlement, the company will pay a fine of $800,000 and has purged about 3,000 accounts from the network. The settlement requires Path to establish a comprehensive privacy program and to obtain independent privacy assessments every other year for the next 20 years, the FTC said in a statement.

The discovery of the underage members came as a byproduct of the FTC investigation into the privacy fiasco over the uploading of iPhone address books to Path’s servers without the permission of the individuals. That privacy breach became a major headache for the company, including stoking  the ire of a very irate Apple. The company later changed its policies.

In a statement, the FTC said:

“Over the years the FTC has been vigilant in responding to a long list of threats to consumer privacy, whether it’s mortgage applications thrown into open trash dumpsters, kids information culled by music fan websites, or unencrypted credit card information left vulnerable to hackers,” said FTC Chairman Jon Leibowitz.  “This settlement with Path shows that no matter what new technologies emerge, the agency will continue to safeguard the privacy of Americans.”

In addition to the $800,000 civil penalty, Path is prohibited from making any misrepresentations about the extent to which it maintains the privacy and confidentiality of consumers’ personal information.  The proposed settlement also requires Path to delete information collected from children under age 13 and bars future violations of COPPA.  Path has already deleted the address book information that it collected during the time period its deceptive practices were in place.

Dave Morin, Path’s founder and chief executive officer, said that the company had identified the accounts in February 2012 and by May 2012 had implemented changes to its sign-up process that automatically caught the underage sign-ups. Path discovered the issue on its own and addressed it (that is, they removed and blocked minors under the age of 13 from the service) before the FTC approached the company, Morin said. Path is currently compliant with COPPA rules. Morin said that the typical Path user is about 25 years old. The company, which has about 6 million registered users, is targeting families for using Path to share personal moments, so this particular settlement offers up a new and unique set of challenges to the company.

Morin said that the big reason the underage children were able to get into the network is because the company didn’t have requisite checks and balances in the system. In a blog post that the company shared with us, Morin explained:

Today the United States Federal Trade Commission (FTC) announced that it reached a settlement pending court approval with Path regarding alleged violations of the Children’s Online Privacy Protections Act (COPPA). The gist of the FTC’s complaint is this: early in Path’s history, children under the age of 13 were able to sign up for accounts. A very small number of affected accounts have since been closed by Path.

As you may know, we ask users’ their birthdays during the process of creating an account. However, there was a period of time where our system was not automatically rejecting people who indicated that they were under 13. Before the FTC reached out to us, we discovered and fixed this sign-up process qualification, and took further action by suspending any under age accounts that had mistakenly been allowed to be created.

We want to share our experience and learnings in the hope that others in our industry are reminded of the importance of making sure services are in full compliance with rules like COPPA. From a developer’s perspective, we understand the tendency to focus all attention on the process of building amazing new things. It wasn’t until we gave our account verification system a second look that we realized there was a problem. We hope our experience can help others as a reminder to be cautious and diligent.

Throughout this experience and now, we stand by our number one commitment to serve our users first.

Path has raised a total of $41.2 million from investors such as Index Ventures, Kleiner Perkins Caufield & Byers and Redpoint Ventures. It was rumored that Google offered a couple hundred million dollars for the company.

Updated at 2.22 Pm: Jeffrey Paul, a researcher discovered another privacy bug in Path’s software. The company says it has fixed the problem and the update has been sent to Apple.

Path’s iOS app (yes, that same Path that was caught stealing users’ entire address books last February) will use the embedded EXIF tag location information from photos in the iOS Camera Roll to geotag your posts, even when you’ve explicitly disabledLocation Services for the Path application. (The app knows, of course, that it’s not getting location data via normal means from Location Services, yet behaves this wayeven in that case.)

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Microsoft, which spent billions on Bing to compete with Google search, is clearly chagrined at this ruling as general counsel Dave Heiner wrote in a Technet post on Thursday.

But the bulk of the comments to that post — actually all of them right now — show zero sympathy for Microsoft which has faced its own share of complaints over its business practices in the past. In 1999, it was actually ruled a monopoly by a federal judge although that decision was overturned two years later.

A sampling of the Technet comments:

“Apple litigates, Google innovates, Microsoft whines.”

“Microsoft’s whining about Google’s abuse of patents or monopoly in general is a pinnacle of hypocrisy. May be you first should look at your own abuses in the same areas?”

” … ‘Google continues to prevent Microsoft from offering a high-quality YouTube app for the Windows Phone.’ Is there a high-quality Microsoft Office app for Linux? iOS? Android? Office documents can’t even be opened on these OSes (yes, you can import them using other software, but that is a hit or a miss affair) At least Youtube is accesible [sic] through the mobile browser from Windows phone, and Microsoft is whining that a “high quality” app is not available…

“Why is there no ‘Share on Google+’ option from this page … You have every other option available -facebook, redit [sic] , linkedin etc….”

It almost makes you wonder if there’s an anti-Microsoft astroturf campaign going on — which might be poetic justice, given Microsoft’s use of such tactics in the past.

The thing that struck me most about this whole drama were the words used by FTC Chair John Leibowitz in response to complaints about the ruling. Quoting Supreme Court Justice Earl Warren, Leibowitz said antitrust laws exist to protect competition, not competitors.

Those were the exact same words Microsoft’s own PR people and lawyers uttered over and over again in its own antitrust battles of the 1990s.

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So why were the feds investigating Google in the first place?

A group of Google competitors, many of them tied to Microsoft, claimed the company was breaking antitrust laws by kicking competitors down its search rankings. Sites like Yelp and Kayak complained that Google favored its own search and travel businesses ahead of theirs in the search listings.

The Federal Trade Commission responded by “exhaustively” investigating a wide range of Google’s business practices, including its ad business and use of patents.

So what did the FTC find?

Today, the FTC concluded that Google didn’t break any laws in the way it displayed its search results. The agency said that Google did change the way its search algorithm sorted results but that those changes were “plausibly connected” to efforts to improve its user experience — not simply to crush competitors.

The FTC did say that Google misbehaved by using standards-essential patents (ones it is supposed to share at reasonable royalty rates) as a weapon. Google responded by saying it won’t do that anymore.

So why is this a big win for Google?

It’s a win for Google because the government won’t get all up in its search results. Microsoft and others had hoped the government would impose some sort of “search neutrality” requirement on Google but that won’t happen now. The end of the investigation also means that Google won’t have to reveal any of the “secret sauce” that it uses to order the search results.

The company also avoided a so-called “consent decree” about its search practices; these decrees set out what the agency thinks a company has done wrong and how it must behave in the future. Consent decrees also act as a magnet for private lawsuits.

As for the patent issue, it was just a sideshow that has little effect on Google’s core business or strategy.

So Google can do what it likes with its search results?

Pretty much. In the past, the company claimed its results were strictly objective but more recently it has argued that search listings are simply a matter of opinion protected by the First Amendment.

The company did, however, make a voluntary pledge today to remove snippets from Yelp reviews and other such sites if the company in question asks them to; Google also said it won’t punish those who opt out.

Is this bad news for consumers?

Not necessarily. So far, Google has stayed more or less true to its stated mission of helping people find any type of information (search “Google sucks” for instance). It’s only in so-called “search verticals” like shopping that Google, like rival Bing, has really been putting its thumb on the scale and favoring certain partners. But in the future who knows what Google will do.

So who loses?

The biggest loser is Microsoft, which funded a long-running cloak-and-dagger lobbying campaign to convince the public and government that its arch-enemy had to be regulated. Sites like Yelp, Kayak and Expedia also lose in the sense that Google can now push them down its search listing with impunity (though there is no sign for now that Google is actually doing this).

The FTC is also a loser because it ran a high profile two-year investigation but came up dry. In this context, the patent ruling is just a minor victory that lets the agency save face.

Did the FTC simply cave in to Google?

Not really. The FTC was in an awkward spot because it didn’t have a slam-dunk case. The agency would have had to prove the existence of a Google monopoly and that Google abused that monopoly; it would also have to clear the First Amendment issue. Rather than risk the embarrassment of losing a lawsuit, the FTC decided to fold its cards instead.

But aren’t European regulators going to force Google to bend on search rules?

The European Commission suggested in December it will come down harder on Google. According to a source familiar with the matter, the outcome is likely to be a “commitment decision” in which Google promises to behave a certain way or else be fined. The source added, however that the rules of a European “commitment” do not expose companies to private lawsuits so, unlike in the U.S., Google will be willing to enter a binding agreement.

It’s too soon to know what that outcome will be but we’re likely to find out in the next month.

(Image by Kzenon via Shutterstock)

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Speaking to reporters on Thursday afternoon, FTC Chair Jon Leibowitz said the agency, in a 4-1 vote, would force Google to stop using standards essential patents in order to to ban rivals’ gadgets from the market place.

On the question of so-called “search bias” — whether Google unfairly demoted rival companies’ sites in its search listings — Leibowitz said the FTC had “exhaustively” examined the issue but concluded that there was no evidence had broken any antitrust laws. He said the FTC had found a “plausible connection” between Google’s listings and efforts to improve user experience, and pointed to efforts by other companies to “game” Google’s algorithms.

In response to criticism from Microsoft and others that the FTC was being soft on Google, Leibowitz cited the late Supreme Court Justice Earl Warren to say that the country’s antitrust laws exist to protect competition not competitors.

Under the deal, Google is also making commitments to let competitors like Yelp exclude snippets from its search results and to share certain data that helps marketers buy ads on different platforms.

You can read details here. We will have a good rundown of the winners and losers of the deal soon.

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From the FTC’s update of the rules:

The definition of an operator has been updated to make clear that the Rule covers a child-directed site or service that integrates outside services, such as plug-ins or advertising networks, that collect personal information from its visitors.  This definition does not extend liability to platforms, such as Google Play or the App Store, when such platforms merely offer the public access to child-directed apps.

The Wall Street Journal reports that Apple and Google lobbied heavily to get that exemption written into the rules, and that the iOS App Store owner “made that point in five meetings with FTC officials in the fall.”

The FTC first proposed updates to the act this summer. Then last week, it released a report in which it looked at 400 apps across both Apple and Google’s mobile ecosystems. Among other things, it found that 59 percent of apps made for kids transmitted information to third parties, 58 percent contained advertising without any notice, while 80 percent didn’t even have privacy policies posted.

The new rules announced Wednesday are intended to strengthen kids’ privacy and give parents more control over the services their kids or using. Among other tweaks to the rules, the FTC also announced that “persistent identifiers” like Apple’s UDID or IFA, along with location and photos, videos or audio files that contain a kid’s picture or voice are now classified as personal information.

Image courtesy of Flickr user robynejay

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The report, which examined more than 400 children’s apps in Google Play and the Apple App Store, found:

• About 80 percent of apps don’t disclose privacy policies in the app or on a website.
• 59 percent of apps transmit information from the device to the app developer or more often to a third party such as an ad network or analytics company.
• 58 percent of apps contain advertising, but only 15 percent disclose that to app users.
• 22 perent of apps reviewed have social media links with only 9 percent sharing that fact.
• And 17 percent allowed in-app purchases within their app.

The app industry has not made significant movement on providing parents with more information about what happens in these apps, said Jessica Rich, associate director of the FTC’s Division of Financial Practices. She said some apps could be in violation of current privacy laws for children. The FTC is now conducting non-public investigations of some apps though Rich declined to say which apps were being reviewed.

She said the danger to children from these apps could come from inappropriate ad targeting of children, sharing a child’s location or opening them up to messaging from outsiders.

“It’s important for kids’ privacy that there be better disclosures and accurate disclosures for parents on what’s happening to kids data,” Rich said.

The FTC is urging the industry to better incorporate privacy protection into the mobile products; offer better information to parents about what’s happening in their apps and choices for data collection and sharing; and offer more transparency about the usage and collection of data.

Rich said the FTC has authority under the Children’s Online Privacy Protection Act (COPPA) as well as the regular FTC rules against unfair and deceptive practices. While Rich is waiting on app ecosystem members to address its concerns, the biggest motivation might come from new revisions the FTC submitted for COPPA in September. Those changes would strengthen online privacy protections and specifically treat device ID information and geolocation data more strictly.

That means a developer may potentially be investigated for sharing device IDs or location data with third parties. That could also have larger implications for bigger developers who make apps for a general audience but are used by children. Device ID and location data can be key components in helping target ads to mobile users based on their behavior and whereabouts. And analytics are important for understanding how an app is being used and how it can be improved.

Apple has come up with its own system for advertisers who want to track users called Identifier for Advertisers, which replaces the old UDID system. But as my colleague Erica Ogg recently pointed out, many advertisers are not making the switch right away from UDID, which provides a chance for better tracking of individuals.

The app market is still so relatively new and many developers are struggling just to make money. We haven’t seen a lot of nightmare cases stemming from the abuse of children’s mobile app data. But the FTC campaign should remind developers that kids apps require a lot more attention to privacy.

Images courtesy of Flickr users umpcportal.com and Tran Duc Tai

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As Liz Gannes notes at All Things Digital, former Google executive Marissa Mayer was adamant in 2005 that there would never be “crazy, flashy, graphical doodads flying and popping up all over the Google site. Ever.” Her comments came after the search giant signed a content deal with AOL, and the fear was that the banner-ad-crazy culture of the former portal would somehow infect Google. It seems obvious (as John Gruber at Daring Fireball points out) that her response was primarily about ads for other companies and products, rather than Google pushing its own products. But the outcome is the same — and if anything, it seems worse that Google is pimping its own offerings, because it tilts the playing field in the company’s favor.

Is Google putting its thumb on the scales?

That’s the underlying principle at stake, not whether or not the homepage has pop-up ads or birthday reminders on it — and it is the part of all this that could lead to even more problems for Google when it comes to the ongoing investigation by the Federal Trade Commission into what it alleges is anti-competitive behavior. A key aspect of that case is whether Google favors its own products, and whether doing so is unfair to smaller competitors because of the company’s monopoly position in search and search-related advertising.

Since it is a corporation and not a public utility, it’s not surprising that Google would promote its own offerings in search results, whether it’s Google Maps or local results or any other aspect of its business. In many ways, the arguments made by “search neutrality” advocates — that Google should remain completely neutral in how and where it places results — are somewhat absurd. The whole point of a search engine is that it provides the best results for a query, and in order to do that it has to make decisions about the value its algorithm places on different sites, decisions that are to some extent always going to be subjective (law professor Eugene Volokh has even argued that search results are effectively a form of free speech).

But as Danny Sullivan of Marketing Land noted recently, this argument is becoming increasingly difficult for the company to maintain, as it acquires more and more businesses that compete directly with other content providers who are likely to show up in search results, and as it tries to expand its Google+ network to become a viable alternative to Twitter and Facebook (as my colleague Barb Darrow reports, the company said Wednesday its social network is also being integrated into its enterprise-level Google Apps offering).

Google wants to own information, not just organize it

So the acquisition of Frommer’s gets added to the acquisition of Zagat, and Google becomes a serious powerhouse when it comes to the business of travel-related reviews and recommendations. Is that a big business? It certainly is, and it’s also one where Google’s search and advertising market share is going to play a fairly critical role. How much preference will results from its own properties get when a user does a search for a restaurant or a hotel? We don’t know, and neither do antitrust regulators — and Google will never give them enough information to make a reasonable guess, because that would reveal too much about its algorithm.

In the same way, the addition of birthday reminder popups seems like a fairly trivial thing for the Google homepage, more of a nuisance than something worth getting upset about — except that the point of these reminders is to promote the use of Google’s Facebook-style network Google+, just as the earlier addition of a toolbar at the top of the search page was, and just as the search feature known as “Search Plus Your World” was when it launched earlier this year. For many, the latter move was one of the biggest betrayals of Google’s original promise that it would never bias its search results for any commercial reason.

In a recent interview with The Telegraph about modifications to its search results, Google executive Amit Singhal made some cryptic comments about Search Plus Your World that seemed to suggest the company was de-emphasizing those personalized results, but it’s not clear what the actual impact (if any) of his comments might be. If anything, Singhal’s remarks seemed more like an attempt to downplay the feature because it has raised concerns with a number of antitrust regulators — including those in the European Community, who are conducting their own investigation of the company’s behavior towards competitors.

Google’s original mandate was to “organize the world’s information,” but many of its recent moves seem designed to own the world’s information instead, or at least to control access to it. That may be in Google’s corporate interests, but is it in the interest of the average web searcher or consumer? As we’ve pointed out in the past, one of the main tests in an antitrust case is whether a company’s behavior distorts the market in a way that penalizes users (and the Federal Trade Commission has even broader latitude when it comes to unfair practices). The more Google expands its ownership of content and services, the harder it will be to defend against those kinds of accusations.

Post and thumbnail images courtesy of Flickr user Mark Strozier

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Google will pay a $22.5 million penalty as punishment for breaking the terms of a 20-year privacy settlement that the FTC had slapped on the company last year. Under that settlement, Google had to pledge it would not “misrepresent” the degree over which users had control of their privacy settings.

The FTC found Google had committed such a misrepresentation when it placed tools known as “cookies” to collect advertising information from users even though the company had suggested Apple’s browser settings would prevent this from occurring. In the words of the FTC:

for several months in 2011 and 2012, Google placed a certain advertising tracking cookie on the computers of Safari users who visited sites within Google’s DoubleClick advertising network, although Google had previously told these users they would automatically be opted out of such tracking, as a result of the default settings of the Safari browser used in Macs, iPhones and iPads.

News of the fine was leaked to the Wall Street Journal in June and today’s announcement makes it official. As is customary in these type of cases, Google does not admit liability under the terms of its penalty agreement with the FTC.

Both Google and Facebook are under 20-year privacy agreements with the FTC. Privacy issues have become a hot issue as regulators try to find the right balance between safe-guarding consumers’ privacies while also ensuring they don’t stifle innovation in the tech sector.

“The record setting penalty in this matter sends a clear message to all companies under an FTC privacy order,” said Jon Leibowitz, Chairman of the FTC.  “No matter how big or small, all companies must abide by FTC orders against them and keep their privacy promises to consumers, or they will end up paying many times what it would have cost to comply in the first place.”

Read the full announcement here.

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