Category: FTC

EC’s Questionnaire 1 on Google/DoubleClick merger

Following press reports of a new questionnaire sent by the European Commission Competition Directorate, we thought we should place here what we believe was the initial survey sent. Eventually, Congress and others will need to investigate how well the FTC conducted its own review of the deal. Frankly, several parties–including commissioners–spoke of their concern that the agency’s loss in Whole Foods and other cases made it more difficult to confront the Google takeover of DoubleClick case. This is an ongoing story. But for now, here’s the questionnaire:

Case COMP/M.4731 – Google/DoubleClick

Questionnaire to Customers 1
Deadline for Reply: 18/10/2007

Google Inc. (“Google”) notified to the European Commission its intention to acquire control of DoubleClick Inc. (“DoubleClick”) by way of purchase of shares. The two parties to the merger Google and DoubleClick are hereinafter collectively referred to as “the parties”. Both are active in the online advertising industry.
Pursuant to the Merger Regulation , the Commission is required to assess the operation’s possible effects on competition within the common market. To this end, the Commission needs to gather relevant information from the parties to the operation as well as from other market operators, such as competitors and customers.
Therefore, your replies to the following questions as well as any other opinion on the effects of the operation you might consider relevant, are of key importance to the investigation. We should also be grateful for any additional remarks you may wish to make relating to the proposed concentration. If you consider that a particular question is not relevant, please indicate this and explain why. Please reply to this questionnaire on behalf of all companies belonging to your group.
When you reply to this questionnaire, please provide TWO versions of your reply: (i) a CONFIDENTIAL version; and (ii) a NON CONFIDENTIAL version which excludes business secrets or other confidential information.

In accordance with the Merger Regulation and in the light of the deadlines which the Commission must respect following the notification of the case, the Commission wishes to have your reply by 18/10/2007.
If you have questions of administrative nature or wish to receive this questionnaire in electronic format, please contact Ms Györgyi Nyiregyhazi (Tel.: +32 2 29 85327, e-mail: gyorgyi.nyiregyhazi@ec.europa.eu) clearly indicating the reference: M.4731 Googkle/DoubleClick – Questionnaire to Publishers.

If you have any further questions on the substance of this request, please contact Mr Bertrand Jéhanno (Tel.: +32 2 29 91048, e-mail: bertrand.jehanno@ec.europa.eu), Mr Carl-Christian Buhr (Tel: +32 2 29 86 033, e-mail: carl-christian.buhr@ec.europa.eu), Mr Flavien Christ (Tel: +32 2 29 90931, e-mail: flavien.christ@ec.europa.eu,), Mr. Peter Eberl (Tel: +32 2 29 60783, e-mail peter.eberl@ec.europa.eu), Ms Vera Pozzato (Tel: +32 2 29 93012, e-mail: vera.pozzato@ec.europa.eu).

Thank you for your help and co-operation.

A. General questions

Please give the contact details of the person responsible for replying to this questionnaire
Company:
Contact person: Phone:
Position: Fax:
E-mail:
Address:
Country:
Company web-site:

Please give a brief description of your organisation, of its size and of your activities. If your company is a subsidiary please indicate the group to which it belongs to.
Description of your organisation:

Please indicate the countries within the EEA in which you are active as online publisher (website owner):

B. The provision of display ad serving, management and reporting infrastructure technology
The provision of display ad serving, management and reporting infrastructure technology could be distinguished according to whether services are provided to advertisers (and agencies) or to publishers (including self-provisioning).
The Commission understands that advertisers create advertisements and upload them onto the advertiser-side ad server. Once a website publisher has agreed with the advertiser (directly or through an ad network or ad exchange) to run the ads on its website, the publisher enters the campaign terms of the ad (location, price, targeting criteria) into the publisher-side ad server. There is then a relationship between the publisher-side ad server – which records the “impression” generated by the user’s visit of the web site and determines the advertiser to call – and the advertiser-side ad server – which chooses the appropriate ad to deliver on the web page. The relationship between the two servers also enables the advertiser to obtain information relating to the user’s online behaviour in the context of the placed ad via browser cookie technology.
1. What is the value of the online advertising revenues generated by your website(s) in Europe?

2. Through which channels do you sell advertising space on your website/s?
Direct sales: YES/NO
And/or
Brokers, intermediaries, ad networks, ad exchanges: YES/NO

3. If you use both the direct channel and the indirect channel (ad network/ad exchange), please indicate (broadly) what % of your online revenues originate from the direct channel.

4. Do you foresee that direct sales of online advertising will decrease in the future in favour of intermediation through ad networks and ad exchanges?

5. Do you foresee that numerous ad networks and ad exchanges will be able to survive in the near future (2-3 years)? Please briefly elaborate.

6. If you use a 3rd party ad serving supplier (e.g. DoubleClick, OpenAdstream, AdManager…): if the price of 3rd ad serving services was to raise by 5-10% (all else equal) would you switch part of your inventory to an integrated network like Google AdSense?

7. Do you consider the cost of switching ad serving technology supplier to be high / moderate / low?

8. If you use more than one supplier of such technology/services, please describe briefly the advantages and disadvantages of such a solution compared to a situation in which only one supplier is used. Please also indicate why your company chose to use more than one supplier for this technology/services.

9. If you only have one supplier for this particular product/service, do you consider it possible/usefull using another supplier for a comparable product/service at the same time? If yes, please name these other possible suppliers. If not, please explain the reason why you choose single homing (e.g. exclusivity clauses, cost saving, quality of service …).

10. Please name other providers of display ad serving, management and reporting infrastructure technology that you consider as competitors of your provider/s at EEA level.

If you sell advertising space through direct sales

11. Which provider/s of display ad serving, management and reporting infrastructure technology is directly supplying your company?

12. Have you ever experienced a switch of supplier for this particular product/service? YES/NO
If yes, please:
explain the reason why you made such experience:
provide the name of your former supplier:
the name of the replacing supplier:
the cost caused by the switch:
the time it took to complete the switch

13. What is the % represented by the cost of ad serving in the total revenue generated by your advertising space? Please provide broad estimates.

If you sell advertising space through brokers/intermediaries/ad networks/ad exchanges
14. Which provider/s of display ad serving, management and reporting infrastructure technology is/are indirectly supplying your company?

15. Have you ever experienced a switch of supplier for this particular product/service? YES/NO
If yes, please:
Explain the reason why you had to switch:
provide the name of your former supplier:
the name of the replacing supplier:
the cost caused by the switch:
the time it took to complete the switch:

16. If you use the indirect channel, what is (a) the % represented by the cost of ad serving in the total revenue generated by your advertising space; (b) the % represented by intermediation fees in the total revenue generated by your advertising space? Please provide broad estimates.

17. If you multi-home, why have you become member of several ad networks?

C. Effects of the merger

18. According to you, is DoubleClick’s large publisher customer base an advantage for the quality of services offered by DoubleClick to publishers? In other words, is there a direct benefit to a publisher to use an ad serving supplier with a larger publisher base? If so, please briefly describe the benefit(s) (e.g. does the ad serving service improves the monetization of inventory if the ad server processes the data on user behaviour accross numerous publishers?).

19. If Google and DoubleClick were to merge, do you consider that integrated networks like Yahoo! (with RightMedia) and Microsoft (with aQuantive) would be able to provide strong competition to Google/DoubleClick? Please briefly elaborate.

20. Would you consider open source ad serving software as a viable alternative to commercial ad serving software? If so would you consider it suitable, in conjunction with a standalone ad network, as an alternative to Google’s AdSense? Please explain.

21. What are, in your view, the main effects of the proposed operation on:
a) your company?
b) the markets for (display and text) ad serving, management and reporting services for publishers?
c) the prices of (display and text) ad serving, management and reporting services for publishers?
Please give reasons for your answers.

22. Do you have any other comments that you wish to bring to the Commission’s attention?

Thank you for your assistance!
Please do not forget to add a non-confidential version to your response.

IAB and its Proposed Privacy Guidelines: Will Fail to Effectively Protect the Public

So relieved where some in the interactive ad business when they read the FTC’s staff proposed privacy principles released last month that commentators described the reaction as the industry had “dodged a bullet” and “breathed a sigh of relief” [“FTC Online Ad Targeting Guidelines: Industry Breathes A Sigh Of Relief”].

Now Paidcontent describes plans underway by the IAB to offer “privacy standards,” via a “15-member working group,” that includes Time Warner, Microsoft, Yahoo! and others [“Online Ad Industry Groups Take Steps To Self-Police”]. According to the January 4, 2008 article by David Kaplan “[T]he IAB task force will address issues of consumer notice and choice, in terms of deciding the context for selecting opt-in or opt-out.”

IAB lobbyist Mike Zaneis says in the article that “[T]he level of appropriate choice needs to be flexible…consumer regulation will prove to be more efficient and powerful than government regulation.” Zaneis considers the campaign against Facebook that resulted in some modest–and ineffective in my view–changes in its data collection system as an illustration of “consumer regulation.” It’s clear that the IAB is incapable of developing a policy that will protect consumers. Anyone who understands the contemporary dimensions of the interactive marketing industry–and has the public welfare in mind–should recognize what is required. The IAB will not be taken seriously if it can’t deliver the truth (it’s so far failed to protect the public from troubling online lead generation practices, for example. See our November 1, 2007 FTC filing). Yahoo!, Microsoft, Time Warner and others on the committee should lead–and not follow–advice from the IAB that will lead to prolonged political conflict–in Europe, in Congress, at the FTC and FCC, and with the incoming Administration.

Real governmental rules are required–including measures that effectively protect every consumer and also address vulnerable groups and sensitive marketing issues. The IAB’s old school Beltway mentality will likely give online advertisers a bad name. Where are the ad industry’s thoughtful leaders who can help steer the IAB in an honorable direction?

The Interactive Ad Bureau: Its Political Posture is a Liability for the Advertising Industry

On December 14, the head of the U.S. Interactive Advertising Bureau–Randall Rothenberg–wrote a commentary for the Wall Street Journal (“Facebook’s Flop” sub. required) that will be used by graduate students someday as an example of what shouldn’t be done to help an industry address a political crisis. Using old cliches, scare tactics, name-calling, the piece reflects a real failure on the part of the IAB to address an important policy issue that affects everyone–including families. It also shows an inability to recognize concerns about online privacy in an historic context. Such an approach may be useful for rallying some of the old guard. But more sophisticated advertisers and marketers will recognize that the online ad industry doesn’t benefit from embracing such an approach.

So instead of saying that there has long been a concern about online privacy, including for children, we are called “anti-business groups.” Instead of admitting that advertisers and marketers are shaping the new media system so it can better track and target us all, the IAB head claims “the consumer is in control.” Instead of admitting that it was the request made by my group and others for the FTC and the European Commission to investigate Facebook’s “Beacon” system, it says that it just took Moveon to force a (partial) retreat (anyone who has political savvy recognizes it was the combination of Moveon’s organizing, the raising of public policy concerns, and advertiser skittishness that led to the Facebook change). The commentary claims we are calling for “the banning of behaviorally-targeted ads.” But almost everyone else recognizes that we have called for meaningful privacy safeguards for behavioral and interactive marketing practices that would protect consumers.

Finally, the oldest canard in the business is used, claiming that without advertising all the “free” content online would disappear. “Advertisers are paying for it,” it is said. Nothing about how consumers ultimately pay for all this–including now their loss of data, privacy and autonomy.

Anyone with insight into where we are historically with interactive media and marketing should recognize that the privacy and marketing related issues must be honestly dealt with. Old style lobbying may show some muscle, but will backfire. Here’s hoping 2008 will bring the gift of better reflection at the IAB–to its officers, board members, and members.

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DoubleClick tracks 50 different consumer data metrics now; what happens after Google merger?

Something to think about, here and in the EU. From a 2006 Businessweek story [excerpt, our italics]:

“The race is on to find new ways to track customer behavior. Advertisers and agencies are progressing far beyond the standard arithmetic of counting clicks and page views. They’re tracking the to-and-froing of the mouse on Web pages, and they’re finding new ways to group shoppers by age, Zip Code, and reading habits. CEO David S. Rosenblatt of DoubleClick Inc., which serves up some 200 billion ads a month for customers, says that every campaign now allows for 50 different types of metrics.”

source: “Wiser about the web.” Businessweek. March 27, 2006

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To Cache a Thief: In their own words…Jones Day work in both U.S. and EU on behalf of DoubleClick:

This is G o o g l e‘s cache of http://www.jonesday.com/experience/experience_detail.aspx?exID=S11555 as retrieved on Nov 9, 2007 17:05:06 GMT.
G o o g l e‘s cache is the snapshot that we took of the page as we crawled the web.
The page may have changed since that time….

Client(s): DoubleClick Inc.

Representation: Acquisition by DoubleClick

Principal Professional(s): Joe Sims, Thomas Jestaedt, Alexandre G. Verheyden, Michael S. McFalls, Chris Ahern

Lead Practice(s): Antitrust Mergers/Joint Ventures

Industry(s): Media

Summary: Jones Day is advising DoubleClick Inc., the digital marketing technology provider, on the international and U.S. antitrust and competition law aspects of its planned $3.1 billion acquisition by Google Inc. The proposed acquisition will combine DoubleClick’s expertise in ad management technology with Google’s internet search and content platform. The transaction is currently under review by the U.S. Federal Trade Commission (FTC) and European Commission.

Related Services
Professional Representation

The Jones Day, Google/DoubleClick & FTC conflict of interest: a higher standard is required by the agency

Our lawyers are advising my organization on this matter, but I want to remind readers of one point. John Majoras of Jones Day is listed on its web site as the “Partner-in-Charge of business development in the Washington, D.C. Office and is a member of the Firmwide Business Development Committee.” [better read it now before Jones Day removes it!]

In that position, his role raises conflicts of interest with cases involving the FTC, in my opinion. With an issue involving the future of the Internet and the fate of digital media in a democracy, the highest standards are required. Chairman Majoras should have recused herself in this case. Jones Day should not have taken on DoubleClick as a client. Jones Day’s removal of the web pages discussing its role as advising DoubleClick in both the U.S. and EU raises serious questions about the firm’s activities in this merger case. There are so many key questions that must be publicly resolved. When did Jones Day begin representing DoubleClick? When did it announce, via its website, internal communications system, and through its representation with clients, regulators, and other outside parties, that it was representing DoubleClick? Did the FTC staff learn of the relationship between their boss’s husband’s law firm and the merger? (Please don’t tell me that such a relationship, even if spread informally, doesn’t have an impact on the proceeding.)

The public requires the highest standards of conduct from its public officials and leading law firms. This incident illustrates that more must be done to make such institutions accountable. Yesterday’s FOIA request by EPIC asking that the FTC provide it with all records related to its communications with Jones Day in this merger case (and related privacy issues) is a step in the direction of obtaining some sunshine.

Over the last six months, we have been focused on the business and privacy issues related to the Google and DoubleClick merger. We knew a huge lobbying operation was in effect, with Google having added significant political capacity in D.C., and various competitors (Microsoft, the phone companies, Yahoo!) jockeying for position. Our job at CDD was to provide some honest analysis about the realities of the online advertising business–its market structure, goals, and privacy threats. We didn’t have the time–nor the resources–to dig into the political aspects of the issue. Sadly, there was little serious journalism on the deal as well. But last Monday we decided to examine what role Jones Day was playing in the Google merger and learned–via its website–that it represented DoubleClick.

This case illustrates something we all know. That the big money and special interest nature of Washington politics is at odds with the concerns and needs of the average American. As I said, a higher standard is required–for public service, disclosure and intellectual rigor (something we believe the FTC has failed to do in this case and related privacy matters). It’s a story that not going away. That’s why we are writing about it–and keeping a watch as well!

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NYU Legal Ethics Expert Says FTC Chair Majoras should recuse in Google/Doubleclick review

Before we run this legal comment, we want to make something clear. This is about ensuring transparency and accountability in the process. It’s not about political ideology or trying to affect the outcome of a proceeding. There are standards that must be adhered to when one is serving the public (oh, and btw, the idea of disappearing web pages from the Jones Day website reflects, I suggest, their own ethical confusion as well). Here’s an important perspective from today’s Online Media Daily:

“Legal ethics expert Stephen Gillers, a professor at New York University Law School, maintains that there’s no question that Deborah Platt Majoras should recuse herself, regardless of whether Jones Day appeared before the FTC in the matter. John Majoras “stands to gain from the success of Jones Day, especially in a high-profile case like this and, therefore, her decision can affect his interest and therefore her interest,” Gillers said.”

“DoubleClick Law Firm Accused Of Concealing Involvement In Merger.” Wendy Davis. December 14, 2007

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Microsoft cooks your data: Gatineau and behavioral targeting

As our online behaviors are continually tracked and analyzed, more about us is known–by marketers and others. Web analytics–software that analyzes how one interacts with a site, is being merged with behavioral measurement and other identifying technologies. Microsoft is moving further in this area, including with its “Gatineau” product. Explains Online Metrics Insider:

“Once demographic information is captured in a registration database, it can be joined with behavioral data in the Web analytics system and reported on. For a real-world example of analytics/demographic integration, take a look at what Microsoft is doing with Gatineau, the company’s free Web analytics offering currently in beta. Microsoft is joining Web site behavioral data with rich demographic data from MS Live profiles.”

What can Microsoft collect? The Micro Marketing blog explains that “Gatineau provides unique insight into the age, gender, and occupation of your site’s visitors…Microsoft stores demographic and behavioral targeting data about a person separately from their contact information with strong safeguards in place to prevent “unauthorized correlation” of the separate data sets…What kind of data is accumulated? Certainly the information you supply when signing up for Hotmail or any number of Microsoft services. As well, your behavior on Microsoft web sites—which sites you visit, which parts of those sites, and how often. Also, publicly available data supplied by third parties may be used to complete your profile…From this data a site can build a detailed profile of the content that interests you and then use that profile to provide additional content or offers relevant to your interests.”

In another words–where is the FTC, the EC, and other privacy regulators!

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Statements on Mark Zuckerberg’s “Thoughts on Beacon” announcement

From: Jeff Chester, Executive Director, Center for Digital Democracy [202-494-7100]

Kathryn C. Montgomery, Ph.D. Professor of Communication, American University. Author of Generation Digital: Politics, Commerce, and Childhood in the Age of the Internet (MIT Press, 2007) [202-885-2680]

Jeff Chester: “Today’s announcement that Facebook users will be able to turn off Beacon, following last week’s opt-in changes, is a step in the right direction. But Mr. Zuckerberg isn’t truly candid with Facebook users. Beacon is just one aspect of a massive data collection and targeting system put in place by Facebook. It’s not really about the company’s desire ‘to build a simple product…lightweight’ that would, as he writes, ‘let people share information across sites with their friends.’ Mr. Zuckerberg’s goal, as he explained on November 6, 2007, was to transform Facebook into ‘a completely new way of advertising online.’ Facebook has rewired its social network to better serve the data collection interests of marketers who, promised Mr. Zuckerberg, are now ‘going to be a part of the conversation’.

“Mr. Zuckerberg can’t simply now do a digital “mea culpa” and hope that Facebook’s disapproving members, privacy advocates, and government regulators will disappear. Nor should Facebook’s brand advertisers permit this statement to diminish the real privacy and security concerns embodied by Facebook’s new targeted ad system. CDD will continue to press U.S. and EU regulators to address Facebook’s significant privacy problem.”

Kathryn Montgomery: “Facebook’s announcement today is a stopgap measure designed to quell the huge public outcry from consumer groups and users over its ill-advised new marketing scheme. The move to allow users to turn Beacon off entirely may restore a small measure of control to Facebook’s members, but it is by no means an adequate safeguard for ensuring privacy protection on this and other social networking platforms. These companies are continuing full steam ahead with new generation of intrusive marketing practices that are based on unprecedented levels of data collection and personal profiling. Regulatory agencies in the U.S. and in Europe need to conduct a thorough investigation of these new forms of social network marketing and develop rules to ensure that consumers are fully protected in the emerging broadband era.”

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EC Enisa Report Underscores Privacy Threats and other Risks from Social Networks: Wake-Up Time for Facebook, MySpace, IAB, FTC, Congress. Rules & Safeguards Required

The expanded targeting based on user profile activity launched last month by both Facebook and MySpace underscore why we must craft federal (and EU) rules to govern the data collection apparatus of social networks. By combining behavioral targeting, transaction data, and profile information, Facebook and others have entered into a new territory. Even industry insiders understand how a line has been crossed: one senior VP at Digitas (part of the Publicis Groupe ad industry empire) noted that [our emphasis]:

“Facebook has made an announcement that has major implications for how marketers can communicate to members going forward. Essentially, Facebook said that it will allow marketers to target members with ads based on its user’s personal profiles, social connections and even the recent activities of each user’s extended network.

This announcement marks a significant departure in the way social networks have been organized to date. Until now, marketers have had limited opportunity to serve ads directly to users within the social network. With this change, marketers will now have the opportunity to target consumers directly based on attitudinal, behavioral and demographic attributes included directly in or inferred from personal profiles and connections online.”

We have sent out to the FTC today this new report [pdf] by ENISA—the European Network and Information Security Agency. Released in October, “Security Issues and Recommendations for Online Social Networks” is worth reading—for its clear and thoughtful analysis and, frankly, its disturbing implications. It’s clear from the start of the paper that social networking sites (SNS) are more than just commercial or personal playgrounds—they are, notes ENISA—“…all-embracing identity management tools…” As the report explains:

“Users are often not aware of the size or nature of the audience accessing their profile data and the sense of intimacy created by being among digital `friends’ often leads to disclosures which are not appropriate to a public forum. Such commercial and social pressures have led to a number of privacy and security risks for SN members.”

Among the “threats” the report lists includes:

1.1 Digital dossier aggregation: profiles on
online SNSs can be downloaded and stored
by third parties, creating a digital dossier of
personal data.
1.2 Secondary data collection: as well as data
knowingly disclosed in a profile, SN
members disclose personal information
using the network itself: e.g. length of
connections, other users’ profiles visited
and messages sent. SNSs provide a central
repository accessible to a single provider.
The high value of SNSs suggests that such
data is being used to considerable financial
gain.
1.3 Face recognition: user-provided digital
images are a very popular part of profiles
on SNSs. The photograph is, in effect, a
binary identifier for the user, enabling
linking across profiles, e.g. a fully identified
Bebo profile and a pseudo-anonymous
dating profile.
1.6 Difficulty of complete account deletion:
users wishing to delete accounts from SNSs
find that it is almost impossible to remove
secondary information linked to their
profile such as public comments on other
profiles.

Among the report’s other recommendations include the need to consider reviewing regulatory safeguards and data protection law, such as the FTC’s Fair Information Practices. Social networks have become a place where people are living out their lives, sharing intimate details about their identity. They cannot be operated as data mining and digital marketing operations solely. They must operate in the public interest as well, including rules protecting privacy for those under 18.

It’s time for a broad range of stakeholders to work together to address what must be done.

PS: ENISA held a conference on the issue last June, featuring a number of interesting papers.