The Right Remedies for Google's AdWords API Restrictions
January 7, 2013
Last week the FTC closed its 21-month investigation of Google after Google made several small concessions, among them dropping certain restrictions on use of Google's AdWords API -- rules that previously limited how advertisers and tool-makers may copy advertisers' own data from Google's servers. Removing the restrictions is a step forward for advertisers and for competition. But the FTC could and should have demanded more from Google in order to address the harm resulting from seven years of these restrictions.
I first flagged Google's AdWords API restrictions in my June 2008 senate testimony and in greater detail in PPC Platform Competition and Google's "May Not Copy" Restriction. In short, the restrictions prohibited making and sharing tools to quickly copy and synchronize ad campaigns across multiple ad platforms -- effectively compelling small to midsized advertisers to use Google only, for lack of tools to manage their campaigns on multiple platforms. Google enforces this prohibition with a system of tool passwords and audits -- letting Google swiftly and completely disable any tool that Google deems impermissible. Indeed, any tool-maker found offering a noncompliant tool would immediately lose all access to Google's AdWords API, as to all of its tool-using subscribers, a devastating blow that kept tool-makers under Google's thumb.
As I pointed out, these AdWords API restrictions let Google charge prices higher than competing platforms: Thanks to these restrictions, a small to midsized advertiser would struggle to buy some placements from Yahoo or Microsoft, even if those vendors offered lower prices. Higher advertising costs directly harm advertisers, and higher prices get passed to consumers (according to the relative elasticity of supply and demand). I also pointed out harms to others in the advertising ecosystem: Competing ad platforms struggle to attract advertisers, hence showing less relevant advertising (discouraging users from clicking ads) and enjoying less auction pressure to push prices upward. Meanwhile, I noted, the AdWords API restrictions give Google that much more leverage in its negotiations with publishers: by weakening other ad platforms' monetization, Google can more easily win deals for publishers' inventory, granting publishers lesser compensation for the content they post.
Strikingly, Google has never seriously defended the AdWords API restrictions. In June 2008, Doug Raymond, Product Manager for AdWords API, argued that advertisers are free to export their data in other ways, e.g. as a CSV text file. But that far-inferior manual export is ad-hoc, time-consuming, and error-prone -- a poor fit for high-priced online advertising. Indeed, this manual approach is a sharp contrast from a modern automation API, and a far cry from what Google offers in other contexts.
By all indications, competition regulators share my concerns. In a November 2010 press release, the European Commission flagged "restrictions on the portability of online advertising campaign data" as its fourth concern in reviewing Google's conduct, a concern most recently reiterated in December 2012 remarks by EC Competition Commissioner Joaquín Almunia. Last week's statement by FTC Chairman Leibowitz is in accord: "Some Commissioners were concerned by the tendency of Google’s restrictions to raise the costs of small businesses to use the power of internet search advertising to grow their businesses."
So everyone but Google agrees that the AdWords API restrictions are improper, and even Google has little to say in its defense. Indeed, despite abandoning most other aspects of its investigation, the FTC did pursue this matter. But the FTC reports only that Google is to remove AdWords API restrictions and that, the FTC indicates, ends the FTC's concern on this subject. I am surprised by such a narrow remedy. The AdWords API restrictions have been in place for more than five years. Were it not for these restrictions, advertisers for five years would have enjoyed lower prices. For five years, third-party publishers would have received higher payment for their ad space. For five years, consumers would have seen more relevant ads at competing ad platforms, perhaps helping to increase competitors' market shares and put a check on Google's dominance. Moreover, for five years competing ad platforms would have enjoyed higher advertising revenues and higher ad click-through rates. It's all well and good for Google to remove the API restriction going forward. But that does nothing at all to address past harm to advertisers and others.
Three Appropriate Remedies
What remedies would be appropriate for Google's seven years of improper AdWords API restrictions? Let me offer three suggestions:
First, after years of improper conduct in this area, Google should expect to pay monetary damages. Google's AdWords API restrictions inflated the prices charged to advertisers. Google should disgorge these ill-gotten gains via pro-rata refunds to advertisers.
Second, Google's changes should be formal binding commitments formalized in a consent agreement. The 1969 Report of the American Bar Association Commission to Study the Federal Trade Commission recognized that voluntary commitments were ineffective, and the FTC largely discontinued voluntary commitments after that report. Indeed, FTC Commissioner Rosch last week noted that the FTC's voluntary commitment approach lets Google offer a statement of its current intent, which Google could reverse or alter at any time. Moreover, an order would have required the FTC to take a clearer position on whether Google's conduct violated the law: An order would have required the FTC to file a complaint, which in turn requires a finding by the FTC that there is reason to believe a violation has occurred. This formality would offer a useful confirmation of the FTC's view -- either the FTC believes a violation occurred, or it does not, but the voluntary commitment process lets the FTC avoid a public statement on this subject. Finally, orders are also vetted with third parties to make sure they will be effective. Microsoft's Dave Heiner immediately offered several gaps in the FTC's approach on AdWords API restrictions. I would have offered additional feedback had I been asked.
Finally, the FTC's investigation surely found documents or records confirming the intent and effect of Google's AdWords API restrictions. The FTC should at least describe those documents -- if not release them in full. Describing or releasing these documents would let concerned parties determine what private claims they may have against Google. If the documents confirm meritorious claims, victims can pursue these claims through private litigation (here too, as Commissioner Rosch suggested).
Google's AdWords API restrictions were a direct assault on competition -- indefensible rules serving only to hinder advertisers' efforts to efficiently use competing search engines, without any plausible pro-competitive justification. On this clear-cut issue, the FTC should have pursued every remedy permissible under its authority. Fortunately it's not too late for state attorneys general and the European Commission to insist on more.