Antitrust #BigTechHearing highlights and data privacy interplay

I’m not a lawyer nor have any knowledge on anti-trust, anti-competition laws but my social media feeds were crowded with the #BigTechHearing posts (maybe because I follow lawyers & data protection leaders). I got a bit inquisitive to see what this thing is about (thanks to the 4 tech giant CEOs together in the hearing, questioned at the same time). So I thought of giving it a watch, but on seeing the duration of the actual video(6.5 hours), I reconsidered, however I gave in to my inquisitiveness and watched the video in parts over a number of days and here’s my observation report on this.

Caution: It’s a long post.

P.S: I’m not an expert in this, so all your queries regarding your organisational policies on competition laws ought to be taken to your legal team.

The hearing(date: 30-July-2020) started with the Chairman (Sen. David Cicilline) giving an introduction of each of the 4 companies under scrutiny(that is, Google, Facebook, Amazon and Apple) and the 3 major concerns of these platforms in the anti-trust, anti-competition space. The CEO’s of each of the companies gave a 5 minute history each of their ideologies, achievements and how their platforms revolutionised the digital world.

3 major concerns

1. Each platform is a bottleneck for a key channel of distribution where they control access to information or marketplace, having incentives to exploit their power like requiring high fees, oppressive contracts, extract data from people who rely on them.
2. Uses its control over the digital infrastructure to surveillance other competitors’ activities, know competitive threat & then buying, threatening or cutting off the rivals from their platforms.
3. Abuse their control over current technology to extend their power like self-preferencing, high pricing or making people buy their additional products from them and pushing off others in the market.

All the 4 companies CEOs mentioned that security and privacy is their highest priority, and they always aim to give maximum control to their users/customers.

Out of the 4 CEO’s speech, Google and Facebook mentioned the need for a Federal Privacy Law.

The 4 companies were scrutinised by 15 congress persons (Congressmen and Congresswomen) who took 5 minute sessions each (in turns, moderated by the Chairman) to question the practices of these companies. Each person scrutinised either one or two or three or all of the four companies in their 5-min session, amounting to about 43 sessions over 5.5 hours (with recess breaks).

Evidences used

• Interviews with former employees
• Email conversations submitted during investigation
• General counsel statements
• Chats between company and sellers, competitors, friends
• Meeting recordings

Questions to Google involved:

1. Google’s search engine algorithm being biased and suppressing the real contents and promoting their content first (and Ads in Search results).
2. Stealing content from SMBs to build their own business.
3. Biasing in vertical search results.
4. Doing analysis on the search results and knowing who their competitors are.
5. Threatening to de-list competitors.
6. Keeping users on Google sites despite other relevant information being available on other sites.
7. Google’s relationship with China government and helping China government while not accepting contracts with US Govt. for quoted reasons of increased surveillance by the Govt. right from within Google’s infrastructure.
8. Whether Google considers employees’ inputs to withdraw from Project Maven
9. Helping China Govt. with AI efforts (J20 fighter jet positioning) while disregarding US Govt. projects.
10. Not allowing export of DCLID quoting reasons of GDPR, privacy threats on cross platform analytics thereby preventing users from moving to other platforms. [Privacy was quoted as a reason for anti competition]
11. Google’s policies on geo-fence requests, warrants, transparency reports.
12. Google’s approach changes after knowing it’s coming for the hearing.
13. Making certain people’s emails go to SPAM suddenly (election bias).
14. GMail’s feature on “Primary” tab meant for emails from friends and family but Google not having a having of who an email sender is to the account holder(as Google doesn’t know if a person is friend or family or other).
15. Google having the potential to combine data sets from multiple sources including browser history.
16. Helping Hillary in the 2016 elections by making changes in the search algorithms and money payment to supporters.
17. Having ways to manually tune / tamper the search results (they have a console for it that few employees can access). Usually used for de-listing dangerous content but also allegedly used for anti-competition.
18. Threat to free speech and journalism (by de-referencing articles and pushing the actual content way behind by many pages in the search listing).
19. Google’s right to de-list videos on YouTube stating community guidelines though it interplays with Free Speech (freedom of expression).
20. Ads targeting towards children and COPPA w.r.t YouTube, where content creators don’t have options to choose what type of ads to target for their videos, and many of them requesting Google for such an option, so as to prevent unnecessary ads to kids.
21. Data Privacy quoted as a reason for changes in the platform leading to anti competitive practices yet the data remains with Google without fulfilling user expectation/quoted reasons of privacy.
22. Google’s APIs allow developers to know which “app” was opened at what time, used for how long and not restricted to within app sandbox. This information is sensitive in nature. Whether this data is used to create competing apps.

Questions to Facebook involved:

1. What standards are used to filter and de-list political, hate speech.
2. FB’s threat to Instagram founder and it’s acquisition instead of competing with it.
3. Russian assault on 2016 presidential elections.
4. Fake accounts monitoring and hate speech review process (in detail).
5. Strategy on acquiring competitors and boldness that they can acquire almost everyone (including Google but at a later stage). “Destroy mode” strategy of FB.
6. Cloning products of competitors, then reaching out to competitors and threatening them to oblige with FB’s acquisition requests.
7. FB harvests and monetizes users’ data & then uses this data to spy on competitors to copy, acquire & kill rivals. [Privacy & Anti competition interplay]
8. FB’s process on recruiting content moderators, whether people from various geographies and cultures are recruited to ensure neutrality and diversity.
9. FB’s use of Fact Checking third parties.
10. FB’s policy on Competitors using FB’s products.
11. Internal policies on Content Review and disciplinary action on biased employees.
12. Training and monitoring the effectiveness of the training given to employees on competition laws and related issues of non-compliance.
13. Neutrality of the senior management on Content.
14. FB’s algorithm on identifying false information especially related to Covid and medication, which often leads to social and healthcare issues.
15. 20M views within 5 hours of a controversial article though the review policy is in place but the time taken to take down the post (5 hours is long).
16. Business decision to list / de-list Content versus First Amendment (free speech).
17. FB being a large platform leading to no competitive policing, no one to regulate it.
18. Doing market research by analysing user Content by knowing clicks & engagement.
19. Acquisition of third parties (eg. Onavo) leading to increased market data, more database, enhanced abilities to understand user base and target competitors.
20. FB’s cookie policy was never to use cookies to collect privacy information from users but the policy is not clear on FB’s use of cookies.

Questions to Apple involved:

1. Why Apple should be the sole decision maker for which app is to be listed and what is not be, in the App Store.
2. Rules of app reviews are not available to the developers and are made up, arbitrarily enforced and/or changed.
3. Apple’s partiality towards developers from different companies, giving preference to some companies while ignoring others.
4. Reduced commission for certain app developers.
5. Can process payment only through App store’s interface and knowing the transaction history to analyse competitive pricing for self products.
6. Developing their own app which competes with other apps that have been in the marketplace for a long time(eg. ScreenTime).
7. iBooks forced a number of publishing houses to create an account there and not launch their own apps(egg. Random House Publishers).
8. Educational app space and commissioning.
9. Change of commission without changes noticed by some developers in few apps in marketplace.
10. Different rules on copy cat apps: one set of rules for external developers (should not copy other apps), another for internal developers (allowing copy cat apps).
11. Access to app store data and knowing competing apps, no sign of internal policies to regulate it.

Questions to Amazon involved:

1. Amazon accessing third party seller data on it’s marketplace to make business decisions on while creating own new products.
2. Whether category managers have access to seller data to determine competition and understand best practices
3. How are the internal policy enforcements tracked, monitored for consistent enforcement and being assessed for breach of internal policies.
4. Strategy : Putting down a competitor by Amazon’s low pricing on self products in the competition and then acquiring the competitor and then increasing the prices of the self products, changing the rules afterwards.
5. Gazelle-Cheetah : Predatory campaigns.
6. Restricting the growth of small businesses and not allowing them space to flourish, threatening them if they don’t comply with Amazon’s requirements, diverting traffic to other competitors of the SMBs within the marketplace, de-listing them etc.
7. Complaints from SMBs on bullying, fear and panic given by Amazon
8. Allowing sellers to sell counterfeit products on marketplace.
9. Slave labour used to create products to give low prices to sell competing products.
10. Oppressive contracts demanding third parties to give content as part of the deal to stream their services on Prime Video / FireStick.
11. Hyper low pricing of Echo, smart devices, making users buy it quickly and then lock-in tech companies who product smart products to support Alexa because of increased user base of the Echo devices in user homes.
12. Promoting AmazonBasics products on “shopping by voice” in Alexa
13. Training model, data used to train Alexa for suggesting the above.
14. No proper checks on stolen goods being sold on platform, counterfeit goods, yet making money(commission) for sale of these products (eg. Banned items, dangerous toys, stolen electronic devices etc)
15. Amazon’s take on not assuming full responsibility for sale of counterfeit goods.
16. If paying higher commission then more preference for seller else being pushed down. Unacceptable practice.
17. Amazon’s DMCA request handling and labelling of copyright information in streaming platforms.
18. Amazon Smiles program : affiliation with agencies (who are biased) who list controversial groups as good people in charity, parameters used to determine which agency to tie up with for facilitating/determining the list of charities.
19. Fulfilled by Amazon sellers given more preference over other sellers(SMBs too).
20. While setting up a seller account, Amazon asks for Name, Address and Phone Number but what effort does Amazon take to verify the accuracy of the information of the seller before allowing them to sell on Amazon.

For most of the questions, the 4 CEOs :

1. Quoted that they’re not very sure of the incident (OR)
2. Said that they would check internally and get back to the Congress person’s office (OR)
3. Mentioned that the representation / characterisation has been wrong and gave an answer for it (OR)
4. Accepted that it was a mistake and they are making efforts for strong measures to counter it. (OR)
5. Mentioned their general stand on something but not referring to the incident/allegation as such.

All 4 CEOs, committed to:

1. Allowing SMBs to flourish in their platform
2. Allowing Black people and women in high management roles (no discrimination)
3. Never encourage slave and child labour
4. Working closely with regulators to achieve more competition and on creation of laws pertaining to it.

Counter replies given by Google (Sundar Pitchai)

1. On US Govt contracts, it quoted that they are working with Dept. Of Defense in Zero-Trust related projects.
2. Licensing of content has been under internal disputes.
3. Yes, google does listen to concerns from internal employees on ethical issues.
4. GDPR and personal data protection was reason to disallow export of DCLID.
5. Google helps as much as possible with geo-fence requests.
6. Some employees do have access to the manual tool to change search engine results, but the access is controlled and logged.
7. Regarding checking false content listing, it was mentioned that Google consults local health authorities (such as CDC) to check the accuracy of information.
8. App access stats(open, close times, battery strength etc) APIs are used to determine the health of the Android ecosystem and to gain insights on improving the operating system(with user consent).

Counter replies given by Facebook (Mark Zuckerberg)

1. Imminent harm to person (user/reader) is considered while de-listing / moderating content.
2. FB saw Instagram as a great “add-on” to their product offering.
3. Some evidences are just a joke made internally (eg. FB wanting to acquiring google).
4. FB uses third party Fact Checking companies to do a third eye review on Content.
5. Market research works by analysing content but practices could be re-checked and aligned to be better.

Counter replies given by Apple (Tim Cook)

1. Considering security and privacy, the app review process is stringent and Apple makes decisions on which app to list and what not to.
2. Illegal tracking on children was quoted as reason to bring in ScreenTime and de-list other competing apps.

Counter replies given by Amazon(Jeff Bezos)

1. There have been violations noted internally on access to seller data on marketplace.
2. Amazon is taking efforts on countering the selling of sold products, counterfeit goods by setting up an internal Counterfeit Crime Unit.
3. For access to seller aggregate data, they have a policy for it and some other safeguards but internal auditing is not carried as frequently.
4. Regarding the listing of sellers based on some parameters, such as commission cost etc, is seen as an act to bring more light on those sellers.
5. Making efforts to verify the sellers but it’s not fool proof or too extensive right now.

What can organisations learn from this?

1. Avoid looking into customer data to analyse trends, especially for developing competing products/services.
2. Consider twice if any change the existing pricing / business model has anti-competition concerns.
3. If acquiring other companies, ensure compliance with anti-competition laws and whether those companies are already considered to be our “competitors”.
4. Before every new feature release, new product release, new entity creation, check for anti-competition threats.

Internal, Training

1. Company’s policies regarding anti-competition must be known by employees and contractors are aware. Training efforts must include creating awareness of these policies.
2. Know your organisation’s policy on our competitors use of your products and your rights over that usage.
3. Know your organisation’s policy on creating copy cat apps.
4. Enforcement of existing corporate policies must be consistent and surveillance audits must be done to ensure it is being followed in all applicable business units.
5. Have policies for not allowing users to use our products to sell counterfeit goods.
6. Check your AI/ML models for non-bias towards certain groups/types of people.

Content moderation, Marketplace and App review

1. If your organisation’s activity involves performing content moderation in any of our products/services, ensure that it does not interfere with Freedom of Speech prescribed in every country’s legislation.
2. If your organisation’s activity involves performing content moderation in any of our products/services, have written policies on moderation of hate speech, terrorism threats, elections, medical comments, etc
3. Act swiftly on deceptive content & false information published by users on your applications / platforms.
4. Avoid creating different rules for specific types of people(eg. Developers from certain countries / companies) and preferring them over others. Being neutral helps ensure consistent competition in the marketplace.
5. For platforms that allow a marketplace, app store, make efforts to verify the accuracy of the developer/seller while they create an account to ensure that they are not developing dangerous apps / selling counterfeit products.

Third parties, contracts, external notifications

1. Keep an eye on our contracts (agreements) with vendors, customers to see if it’s oppressive on us and vice versa.
2. Do careful evaluations of the third parties whom you contract with, check to ensure that they are not biased towards any particular political group, agency or have any such affiliations.
3. Efforts must be made to ensure that your external policies (such as Terms of service, content / app review policy, cookie policy, etc) are clear and without ambiguity.
4. Keep track / log of activities of access, changes and moderations helps check for conformance to policies.

A statement made by one the Congresswoman Ms. Jayapal had a direct say on how data tracking(privacy) has influence on anti-competition. Here’s what she said(paraphrased):

Your organisation collects data from users by tracking and then uses that data to determine what applications, products they are using and develop your own competitive products to suppress the competition.