Google Academics Inc. Google Transparency Project Citation Network of Google-funded Academic Papers Google Academics Inc. 1) Introduction Google has been inextricably associated with academia since its inception. The parents of both founders were academics and the company itself was conceived and born at Stanford University. Sergey Brin’s biography on Google’s site still states: “He is currently on leave from the Ph.D. program in computer science at Stanford University.”1 The company has cultivated a college-like atmosphere, offering yellow bicycles for employees to ride around its sprawling campus. Its partnerships with Carnegie Mellon University are so extensive that a Google office is housed on the school’s campus.2 Behind the scenes, however, Google has exercised an increasingly pernicious influence on academic research, paying millions of dollars each year to academics and scholars who produce papers that support its business and policy goals. An in-depth examination by the Google Transparency Project identified 330 research papers published between 2005 and 2017 on public policy matters of interest to Google that were in some way funded by the company.3 In more than half of those cases (54%), academics were directly funded by Google. The remainder worked for, or were affiliated with, groups or institutions that were funded by Google. In the majority of cases, readers of the papers would not have been aware of the corporate funding: Academics did not disclose the Google funding in nearly two-thirds of cases (65%). Authors failed to disclose funding even when they were directly funded by Google in more than a quarter (26%) of cases. Funding not acknowledged Funding acknowledged Indirect Funding Direct Funding Total 130 85 21 94 151 179 215 115 330 Figure 1: The full database of studies is available at googletransparencyproject.org The academic papers examined encompassed a wide range of policy and legal issues of critical importance to Google’s bottom line, including antitrust, privacy, net neutrality, search neutrality, patents and copyright. They were also tied to specific issues that Google sought to influence. 1 https://research.google.com/pubs/SergeyBrin.html https://www.cmu.edu/homepage/beyond/2007/winter/high-tech-home.shtml 3 This research builds on a previous report that focused on Google’s sponsorship of academics appearing at privacy conferences, accessible here: https://assets.documentcloud.org/documents/2995349/CfA-Googles-Silicon-Tower-7-1916-Final.pdf 2 July 14, 2017 1 The number of Google-funded studies tended to spike during moments when its business model came under threat from regulators—or when the company had opportunities to push for regulations on its competitors. For example: Google began to fund a barrage of academic studies on antitrust issues in 2011, a time when U.S. antitrust enforcers began to scrutinize the company’s practices. Overall, more than a third (113) of the Google-funded studies in our dataset focused on antitrust issues—the largest single category. Figure 2: Google-funded competition studies spiked in 2012, during the FTC antitrust probe of the company The largest number of studies were published in 2012, coinciding with major antitrust investigations into its conduct by the Federal Trade Commission and European regulators. (See Fig. 2) Between 2011 and 2013, Google funded academics authored at least 50 studies on antitrust issues. Among others, studies included Google and the Limits of Antitrust: The Case Against the Case Against Google, authored by Geoffrey Manne with the International Center for Law & Economics (ICLE) and Joshua Wright from George Mason University and Search, Essential Facilities, and the Antitrust Duty to Deal by Marina Lao at Seton Hall University.4 5 The spike in competition-themed papers subsided after the Federal Trade Commission closed its investigation in early 2013. There was a second spike in 2015, when a potential settlement in Europe fell apart and the European Commission filed formal antitrust charges against the company.6 7 Google-funded studies on copyright issues also surged in 2012, as the company fought anti-piracy bills in Congress. They peaked the following year amid continuing battles over whether it could be held responsible for distributing pirated books, music or movies.8 The Google-funded studies came from a wide variety of sources, and often blurred the line between academic research and paid advocacy by the company’s consultants. They were authored by academics, think-tanks, law firms, and economic consultants from some of the leading law schools and universities in the country, including Stanford, Harvard, MIT, University of California Berkeley, UCLA, Rutgers, Georgetown, Northwestern Law School, and Columbia. 4 https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=1577556 https://works.bepress.com/marina_lao/4/download/ 6 https://www.bloomberg.com/news/features/2015-08-06/google-s-6-billion-miscalculation-on-the-eu 7 http://europa.eu/rapid/press-release_IP-15-4780_en.htm 8 https://googleblog.blogspot.com/2012/01/dont-censor-web.html 5 July 14, 2017 2 They weren’t confined to the U.S. Internationally, Google-funded studies were written by academics at some of the most prestigious universities in Europe, including Oxford (U.K.), Edinburgh University (U.K.), Berlin School of Economics (Germany), Heinrich Heine University (Germany), and KU Leuven (Belgium). Our inquiry included Google-funded scholarship regardless of whether it advanced Google’s policy agenda or not. While some individual papers offered criticisms of Google, the overwhelming majority tended to support the company’s policy or legal positions. Some studies were authored by serious academics and appeared to employ reasonable methodologies, but many others lacked basic standards of academic rigor. Many of the Google-funded policy research papers examined were not published in peer-reviewed journals. Some were selfpublished on the Social Science Research Network, and many more appeared in publications that lack peer-review requirements. At the extreme, some were little more than thinly veiled opinion articles dressed-up as academic papers, outlining the beliefs of an author on Google’s payroll with little or no supporting evidence. Figure 3: Google-funded copyright papers surged as the company battled anti-piracy bills Google’s paid policy research had broad reach and may have influenced policymakers unaware of its sponsorship. Google lobbyists and lawyers pushed the Google-funded research to journalists, the White House, Congress, journalists, regulators and agencies investigating its conduct, such as the Federal Trade Commission, often without disclosing that they paid for its production. (See: Google-funded Research Used for Lobbying.) For example, Eric Schmidt, then Google’s chief executive, cited a Google-funded author in written answers to Congress to back his contention that his company wasn’t a monopoly.9 10 He didn’t mention Google had paid for the paper.11 More recently, Google-funded academics and speakers have dominated FTC conferences related to online consumer privacy and data security issues without disclosing the company’s funding to regulators or attendees.12 13 The company has also sent the research 9 https://www.documentcloud.org/documents/3235665-FTC-10783.html#search/p82/David%20Balto https://gigaom.com/2012/08/05/apple-and-microsofts-patent-troll-spells-trouble-for-smartphone-innovation/ 11 http://www.dcantitrustlaw.com/assets/content/documents/2011/googlesearchfinal.1.pdf 12 http://googletransparencyproject.org/articles/google-funded-speakers-dominate-policy-conferences 13 http://googletransparencyproject.org/articles/privacycon-update-more-disclosure-google-funding 10 July 14, 2017 3 to journalists, policymakers, and other regulators and law-enforcement officials investigating its conduct. The reach of Google extends further still. Our analysis showed that Google-funded studies routinely cited each other. The practice helps obscure the original Google funding and creates the impression of a large and growing body of academic research that supports the company’s policy positions. This last point is ironic: It was Larry Page’s middle-of-the-night insight that hyperlinks could be used like academic citations to determine the usefulness of information that famously gave rise to Google.14 Now Google is creating a universe of paid-for citations with which to advance its policy interests. The 330 Google-funded articles that we identified were cited nearly 6,000 times in more than 4,700 unique articles. Overall, our analysis suggests that Google is using its sponsorship of academic research, not to advance knowledge and understanding, but as an extension of its public relations and influence machine. Google is not the first company to fund academic research to advance its policy goals. But our analysis suggests that Google is among the companies that have most enthusiastically embraced the practice in recent history—particularly noteworthy for a company that ostensibly places such a high value on real research. In so doing, Google has joined a list of business sectors that have exercised a corrupting influence on academic research, including the tobacco industry over the effects of smoking and the fossil fuel industry over the science of climate change. 14 http://www.businessinsider.com/larry-page-the-untold-story-2014-4 July 14, 2017 4 Detail from database of Google-funded academic papers compiled by GTP, accessible at googletransparencyproject.org 2) Background In its two decades of existence, Google has funneled tens of millions of dollars into academic research. Through its Research at Google program, the company provides substantial unrestricted gifts to support full time faculty research at institutions around the world.15 The company has a host of programs to sponsor research, including faculty research awards, focused research awards, visiting faculty programs and Google research awards for Latin America. The company doesn’t disclose the total amount it spends on academic research. However, its website notes that just one of its funding programs, the Google Faculty Research Awards, provides annual funding of up to $150,000 per researcher. In 2015 alone, the program supported 184 academic research projects.16 Another program, the “Focused Research Awards,” has funded over 100 research projects since the program’s inception. As might be expected, much of the research Google funds is technical in nature and has practical applications for the company’s business. However, Google also financially supports a significant amount of academic research on legal and public policy matters that 15 16 https://research.google.com/university/ https://research.google.com/research-outreach.html#/research-outreach/faculty-engagement July 14, 2017 5 affect its business, such as antitrust law, privacy regulation and intellectual property rights. Each of those issues has the potential to upend Google’s business or, conversely, to open up new markets that could be worth billions of dollars in new revenue. For example, antitrust cases in the U.S. and Europe and elsewhere could prevent the company from using its dominant search engine and mobile phone software to promote its other products. New privacy rules could stop it from using the data it collects on people to target them with advertisements. New copyright enforcement laws could make it liable for pirated material uploaded by its users. New rules allowing self-driving cars on the roads or allowing Google to track what TV viewers are watching could provide it with multibillion business opportunities.17 18 To fight these threats and advance its business interests, Google has built one of the largest corporate lobbying operations in Washington, Brussels and around the globe. A key, but little-examined component of Google’s influence machine is its global network of academics, think-tanks and consultants, who often work in concert to promote the company’s policy goals. Google’s close partnerships with academia have at times drawn scrutiny. In 2006, Google gave $2 million to Stanford’s Center for the Internet & Society to help it fight for copyright reform, a key policy issue for the company. The center’s founder, Larry Lessig, said the contribution was to be used to “build a network of legal resources to achieve in practice the balance that copyright law and the First Amendment intend.”19 In February 2007, The Wall Street Journal raised questions about the relationship between Google, Lessig and Stanford. Stanford should never have accepted the Google ‘gift’, an ethics expert quoted by the paper said, because it was too narrowly tailored to benefit Google’s corporate interests. Stanford’s CIS “might as well be the Google Center,” the ethics expert said.20 Lessig insisted that Google’s contribution would not affect his scholarship and there was no “quid pro quo.” He pledged that, to “avoid any perception of conflict, the center will avoid litigation if it relates to Google.” Just a month later, however, Lessig and the Stanford CIS were involved in a lawsuit that directly affected Google. They represented plaintiffs in a lawsuit against Viacom Inc. charging that the company had unjustly demanded that Google remove a Colbert Report clip from YouTube. 21 In this report, we highlight some of the most significant recipients of Google funding, and who most reliably support the company’s policy prescriptions. We also discuss Google’s use of the research it sponsors to advance its policy interests and discuss questions 17 http://googletransparencyproject.org/articles/google-enlisted-obama-officials-lobby-states-driverless-cars https://www.nytimes.com/2016/05/30/opinion/dont-hand-our-tvs-over-to-google.html 19 http://news.stanford.edu/news/2006/december6/google-120606.html 20 http://www.wsj.com/articles/SB117226912853917727 21 https://www.eff.org/files/filenode/moveon_v_viacom/complaint.pdf 18 July 14, 2017 6 concerning academic disclosure of Google-funded scholarship. Finally, we discuss how the company, despite a reputation for scientific rigor, often sponsors academic studies that largely fail to meet commonly-accepted academic standards. i) A Troubling Precedent: Tobacco-funded Research Google is not the first company to use academics to advance its business interests. But it is one of the most prolific corporate funders of academics writing about issues that affect it and is especially notable given the company’s origin story, which leans heavily on its academic roots. It also places Google in some questionable company. Corporate funding of academics has been used by industries to ward-off regulation in the past, including efforts to halt research into the harmful effects of lead in gasoline and, more recently, into the effects of burning fossil fuels on climate change.22 The tobacco industry also funded academic and scientific research in an effort to avoid regulation. George Mason University economist Robert Tollison played a central role in those efforts.23 In addition to his university work, Tollison ran groups including the Center for the Study of Public Choice and the Committee on Taxation and Economic Growth, that carried out much of the work on behalf of the tobacco industry. Tollison’s program included drafting white papers and recruiting academics to write opeds supporting the industry. Tollison’s Committee on Taxation and Economic Growth included an “informal committee of economists from 42 states who have collectively and individually participated in activities on behalf of the tobacco industry in the areas of excise taxation and public smoking” according to a Tobacco Institute memo.24 Another GMU professor, Henry Manne, held seminars for judges on tobacco litigation without disclosing it was funded by Big Tobacco.25 ii) Google Taps Same Influence Network as Big Tobacco George Mason University, a focal point of the tobacco industry’s network of paid academics in the mid-1990s, today appears front-and-center in a similar, corporate-backed effort by Google. GMU generates a significant amount of academic research supporting Google’s position on antitrust policy and sponsors academic conferences that largely echo the company’s policy positions. The research includes papers by Joshua Wright, who was a professor at the university at the time, arguing that the Federal Trade Commission should not bring an antitrust suit against Google.26 27 22 http://www.motherjones.com/environment/2014/04/cosmos-neil-tyson-lead-industry-science-denial https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1497700/pdf/15842123.pdf 24 https://www.industrydocumentslibrary.ucsf.edu/tobacco/docs/#id=zjhm0146 25 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2563562/ 26 https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=1577556 23 July 14, 2017 7 Google also worked with GMU behind the scenes to invite speakers funded by the company to a conference on its antitrust issues, to which Google also donated substantial funding. The Washington Post published emails obtained under open-records requests showing that Google also urged the law center to invite Federal Trade Commission officials who were likely to be part of the investigation then taking place into its business practices.28 In addition to its paid network of academics, Google has also aggressively lobbied professors to mold their opinions on antitrust and other policy issues. In May 2011, Politico reported that Google was actively courting professors to “persuade the Ivory Tower that its business practices remain wholesome.” The company’s efforts reportedly included hour-long presentations “buttressed by pie charts, graphics and other visuals.”29 Geoffrey Manne, the founder and Executive Director of the International Center for Law & Economics (ICLE) and a former senior fellow at Tech Freedom, has longstanding ties to George Mason University.30 He is the son of Henry G. Manne, the Dean Emeritus of the GMU Law School and the founder of the Law & Economics Center who received tobacco industry funding to hold seminars for judges about tobacco funding.31 The younger Manne has authored at least ten policy papers supporting Google’s positions on antitrust, search neutrality and copyright/patent issues, as well as numerous op-eds and Congressional testimony. Manne’s academic research has appeared in the Journal of Competition, Harvard Journal of Law and Public Policy, and the Wisconsin Law Review among others.32 He is frequently quoted in national media and has testified before Congress supporting Google’s position on antitrust issues.33 Days after European regulators filed their antitrust case against Google in April of 2015, Manne was quoted in The New York Times defending the company from the antitrust charges by comparing the Google case to the Microsoft antitrust case 15 years earlier: “In the Microsoft case, if they’d just waited a while, the problems they thought they saw would have disappeared because technology, consumer behavior and the market demand changed enough to correct those problems.”34 27 http://jolt.law.harvard.edu/assets/misc/ManneRinehart.pdf http://www.washingtonpost.com/news/politics/wp/2014/04/12/how-google-worked-behind-the-scenes-to-invitefederal-regulators-to-conferences/ 29 http://www.politico.com/story/2011/05/google-courts-professors-on-antitrust-054398 30 http://laweconcenter.org/people.html 31 http://www.masonlec.org/programs/henry-g-manne-program-law-economics-studies 32 http://www.laweconcenter.org/people.html 33 http://judiciary.house.gov/_files/hearings/pdf/Manne100916.pdf 34 http://www.nytimes.com/2015/04/16/technology/case-against-google-may-be-undercut-by-rapid-shifts-intech.html?_r=0 28 July 14, 2017 8 Two weeks later, Manne published an op-ed in The Wall Street Journal arguing that the European Commission’s case against Google reflected a deep misunderstanding of the search market.35 He argued that general search, comparison shopping and product search should not be considered distinct markets, adding that the belief that Google would be able to leverage its success in general search into dominance of more specialized markets “completely misses the mark.” Date February 2010 March 2010 January 2011 January 2011 April 2011 July 2013 Title The FTC’s Misguided Rationale for the Use of Section 5 in Sherman Act Cases Google and the Limits of Antitrust: The Case Against the Antitrust Case Against Google * The Law and Economics of Online vs. Traditional Markets The Problem of Search Engines as Essential Facilities: An Economic & Legal Assessment If Search Neutrality is the Answer, What’s the Question? * The Market Realities that Undermined the FTC’s Antitrust Case Against Google February Humility, Institutional Constraints & Economic Rigor: 2014 Limiting the FTC’s Consumer Protection Discretion August 2014 The Law and Economics of Data and Privacy in Antitrust Analysis May 2015 The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework September A Critical Assessment of the Latest Charge of Google’s 2016 Anticompetitive Bias from Yelp and Tim Wu * Co-authored with Joshua Wright Google Disclosure N Y N N Y N N N Y Y Figure 4: Geoffrey Manne’s Google-friendly research Google does disclose its funding to ICLE on its “Transparency” web page, though it doesn’t disclose the amount it pays Manne.36 Manne has disclosed his Google support in testimony before Congress and in some published op-eds.37 However, Manne is often more selective in disclosing Google’s support in the white papers and studies he publishes. Manne disclosed Google’s financial support in just four of the 10 white papers he published on public policy matters important to Google between 2010 and 2016. iii) Joshua Wright and George Mason University Joshua Wright, a former professor at GMU, has longstanding financial ties to Google and has authored studies promoting its interests. Wright has authored at least four research 35 http://www.wsj.com/articles/googles-looming-battle-over-search-1430263075 http://www.google.com/publicpolicy/transparency.html 37 https://poseidon01.ssrn.com/delivery.php?ID=7931160040731230161010260841130020991220220370160060650771 1600800512500109511800602700006111904301905912409702301906511212610302705305807604600002808906808 907007104103903400907409108809911311310012710208 36 July 14, 2017 9 studies on antitrust, patents and search neutrality, all backing Google’s policy positions. In three of those papers, Wright disclosed receiving financial support from Google. In one— an essay for a volume titled Regulating Innovation: Competition Policy and Patent Law Under Uncertainty—he did not.38 Wright has also been in a position to aid Google in government: he spent two years as a commissioner at the FTC, which is charged with policing Google’s conduct on privacy and antitrust. He is also reported to have helped select the next crop of regulators that will police Google as a member of the Trump administration transition team, and could reenter a government himself. Wright, now Senior of Counsel at Google’s outside law firm, Wilson Sonsini Goodrich & Rosati, has pulled off the “rare revolving-door quadruple play” The Intercept wrote.39 40 During Wright’s George Mason tenure, the University received $762,000 in funding from Google. Notably, Wright co-authored three of the Google-related studies with ICLE’s Geoffrey Manne. 41 In 2012, Google’s financial support of Wright’s academic work became an issue during Senate confirmation hearings of his nomination to the FTC.42 To allay concerns, Wright told the Senate Commerce Committee staff that he would not take part in any agency enforcement decisions — antitrust or otherwise — regarding Google for two years. Wright’s pledge came after a review by the FTC general counsel’s office, which recommended the recusal under President Obama’s ethics policy. Google’s particularly close relationship with George Mason University extends beyond Wright. Google also commissioned a 2012 study co-authored by George Mason professor and former Supreme Court nominee Robert Bork entitled: What does the Chicago School teach about Internet search and the antitrust treatment of Google? 43 Google also provides financial support to George Mason’s Mercatus Center and lists the Center as a “Host Organization” for its policy fellowship program.44 45 George Mason University School of Law itself has hosted several conferences and symposiums on key policy issues impacting Google and dominated by Google funded academics through its Law & Economics Center. The Center has hosted its annual Conference on the Law and Economics of Search 38 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1462489 https://www.linkedin.com/in/joshuawright2/ 40 https://theintercept.com/2016/11/15/google-gets-a-seat-on-the-trump-transition-team/ 41 http://www.salon.com/2015/11/24/googles_insidious_shadow_lobbying_how_the_internet_giant_is_bankrolling_frien dly_academics_and_skirting_federal_investigations/ 42 http://www.politico.com/story/2012/12/ftc-nominee-joshua-wright-to-recuse-himself-from-google-cases-84487.html 43 http://aei.org/wp-content/uploads/2012/10/-what-does-the-chicago-school-teach-about-internet-search-and-theantitrust-treatment-of-google_132249480630.pdf 44 https://www.google.com/publicpolicy/transparency.html 45 https://www.google.com/policyfellowship/hosts.html 39 July 14, 2017 10 Engines and Online Advertising since 2011, which features many of the leading antitrust academics from universities and colleges throughout the U.S. and has included presentations from more than a dozen speakers who have received Google funding.46 Other GMU conference panels have included topics such as The FTC’s Google Investigation: Implications for the States and Other Countries; Social Media, and the First Amendment; and The Intersection of Copyright and Antitrust. A site-search of the Law & Economics Center using the search phrase “Google” returns more than 70 Power Point presentations and white papers on policy issues such as antitrust, online privacy and search neutrality, most from academics participating in the Center’s annual conference and most of which appear to support the company’s policy and legal positions.47 While the annual conferences often include some academic opponents of Google policy issues, they appear to be consistently weighted toward academics supporting Google’s policy position on issues, often even including Google engineers and economists to offer their perspectives. 48 Among others, Google-funded academics who have attended GMU’s conferences include: • • • • • • • • Catherine Tucker (MIT) – received $155,000 in Google grants.49 David Balto (former DOJ and FTC antitrust attorney) –previously disclosed publishing “research and authored scholarship for Google on technology policy topics.”50 Marina Lao (Seton Hall Law School) – disclosed Google funding in two white papers.51 52 Christopher Dellarocas (MIT) – received $140,000 in Google research awards.53 Jane Bambauer (University of Arizona) – was a Google Policy Fellow in 2014.54 Siona Listokin (George Mason University) – received a Google Faculty Research Award in 2015 and wrote a Google funded white paper on industry self-regulation.55 56 Michael Baye (Indiana University) – wrote a Google-funded white paper in 2012.57 Daniel Rubinfeld (University of California Berkeley) – wrote Google-funded white papers in 2010, 2013 and 2014. 58 59 60 46 file:///C:/Users/Daniel/Downloads/Conference on the Law and Economics of Search Engines and Online Advertising https://www.google.com/search?q=google+site%3Awww.masonlec.org&oq=google+site%3Awww.masonlec.org&aqs =chrome..69i57j69i64.1815j0j4&sourceid=chrome&es_sm=91&ie=UTF-8#q=google+site:www.masonlec.org&start=20 48 http://masonlec.org/site/rte_uploads/files/Manne/2010-2011/Agenda - Mason LEC PPC on Search and Online Advertising June 2011.pdf 49 http://cetucker.scripts.mit.edu/docs/cv.pdf 50 http://www.dcantitrustlaw.com/assets/content/documents/2012/searching_google1.pdf 51 http://cetucker.scripts.mit.edu/docs/cv.pdf 52 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2245295 53 http://dellarocas.com/wp-content/uploads/2013/02/dellarocas-cv.pdf 54 http://www.law2.arizona.edu/faculty/facultypubs/documents/cv/5011/5011.pdf 55 http://sionalistokin.gmu.edu/publications/ 56 https://www.ftc.gov/system/files/documents/public_comments/2015/10/00031-97822.pdf 57 https://kelley.iu.edu/mwildenb/evolutionsearch.pdf 58 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734015 59 https://www.law.berkeley.edu/files/Ratiff-Rubinfeld_Jan2013.pdf 60 https://www.law.berkeley.edu/files/Search_Engine_Paper(1).pdf 47 July 14, 2017 11 • • • • • • Thomas Lenard (Technology Policy Institute) – Google is a financial supporter of TPI.61 Bruce Kobayashi (George Mason University School of Law) – Google is a substantial supporter of the University and Law School.62 Stephen Houck (Mennaker and Hermmann) – was an advisor to Google.63 Marvin Ammori (New America Foundation, The Ammori Group) – was a consultant to Google.64 Daniel O’Connor (Computer & Communications Industry Association) – Google is a financial supporter of CCIA.65 James Cooper (George Mason University) – Google is a substantial supporter of the University and Law School.66 iv) James Cooper and George Mason University James Cooper, another professor at George Mason University, has participated in several panels with FTC officials, including at two FTC privacy events in January 2016 and January 2017 known as “PrivacyCon”, and on a GMU panel with FTC officials titled “Antitrust Lessons for Privacy Regulators” in February of 2016. Both the January 2016 and January 2017 PrivacyCon events were heavily attended by Google-funded privacy researchers. 67 68 Emails between Cooper and Google obtained by Salon and The Washington Post show a Google lobbyist worked to place an op-ed by Cooper that was favorable to the company. 69 70 Google lobbyists also proposed inviting other Google-friendly academics to attend conferences organized by Cooper, while concealing its coordinating role from the attendees. Despite the revelation that Google was acting in concert with Cooper and GMU, the FTC invited him to speak at both the 2016 and 2017 PrivacyCon events. Cooper did not disclose any of his substantial connections to Google at either event, although he did acknowledge receiving support from “several corporations” in his biography and provided a link to the George Mason disclosure page at this year’s PrivacyCon. 71 61 https://www.google.com/publicpolicy/transparency.html https://www.salon.com/2015/11/24/googles_insidious_shadow_lobbying_how_the_internet_giant_is_bankrolling_frie ndly_academics_and_skirting_federal_investigations/ 63 http://www.masonlec.org/site/rte_uploads/files/Houck_Microsoft-Google.pdf 64 https://marvinammori.files.wordpress.com/2011/12/marvin_ammori_resume.pdf 65 https://www.google.com/publicpolicy/transparency.html 66 https://www.salon.com/2015/11/24/googles_insidious_shadow_lobbying_how_the_internet_giant_is_bankrolling_frie ndly_academics_and_skirting_federal_investigations/ 67 http://www.googletransparencyproject.org/articles/google-funded-speakers-dominate-policy-conferences 68 http://www.googletransparencyproject.org/articles/privacycon-update-more-disclosure-google-funding 69 https://www.salon.com/2015/11/24/googles_insidious_shadow_lobbying_how_the_internet_giant_is_bankrolling_frie ndly_academics_and_skirting_federal_investigations/ 70 https://www.washingtonpost.com/news/politics/wp/2014/04/12/how-google-worked-behind-the-scenes-to-invitefederal-regulators-to-conferences/?utm_term=.241ef81bf440 71 https://www.ftc.gov/news-events/events-calendar/2017/01/privacycon 62 July 14, 2017 12 Cooper also presented a white paper favorable to the company’s position on privacy at the 2017 PrivacyCon event that failed to disclose Google’s financial support of GMU.72 Titled “Autonomy and the Collection of Personal Data: Measuring the Collection of Privacy Impact of Google’s Privacy Policy Change”, Cooper argued that Google’s 2012 privacy changes, which combined user information across platforms “indicate that consumer choice works when it comes to privacy.” Cooper argued that the Google policy changes were “widely publicized and gave consumers over a month of notice” to change their online behavior. Cooper concluded that the relative loss in privacy autonomy was “swamped by benefits from combining personal data across Google platforms for most consumers.” While Cooper failed to disclose his Google connections, he did thank Hal Varian, Google’s chief economist “for his valuable comments” to the study. The timing and subject matter of Cooper’s white paper is significant: A month before Cooper’s January 2017 presentation, consumer advocates had filed a complaint with the Federal Trade Commission charging that Google acted in a “highly deceptive manner” and violated user privacy through a little noticed privacy policy change it enacted in June of 2016 that combined Google user data with data from Google-owned DoubleClick. 73 72 https://www.ftc.gov/system/files/documents/public_comments/2016/10/00068-129187.pdf https://www.washingtonpost.com/news/the-switch/wp/2016/12/19/google-facing-ftc-scrutiny-over-privacy-yetagain/?utm_term=.6647cffc7fd3 73 July 14, 2017 13 3) Blurring the Lines: Google’s Hidden Funding of Academic Research In addition to its overt funding of academic research, Google also appears to hide its funding by routing it through third-parties it supports. Examples include Nicholas Economides, with NYU’s Stern School of Business, Jonathan Band, an adjunct professor at Georgetown University, and Daniel Rubinfeld, a professor at U.C. Berkeley. Both Economides and Band are staunch supporters of Google’s legal and policy agenda, who have published dozens of studies a year on copyright, patent, net neutrality and other issues. Neither appears to receive funding from Google through the universities where they work as professors. Google instead has provided significant funding to Band’s private consultancy PolicyBandwidth.com and Economides’ non-profit Net Institute. During the debate over net neutrality in 2010, Economides published two studies financed by Google on the subject that closely mirrored the company’s policy positions: Why Imposing New Tolls on Third-Party Content and Applications Threatens Innovation and Will Not Improve Broadband Providers Investment and a supplement to that paper titled, Broadband Openness Rules are Fully Justified by Economic Research.74 75 Economides disclosed that the research was funded by Google and filed the papers with the FCC in the agency’s net neutrality proceeding. In addition to his academic work, Economides is also the founder of the Networks Electronic and Telecommunications “NET” Institute, a nonprofit that funds research on network industries, electronic commerce, and telecommunications issues.76 The NET Institute is closely tied to Google: the company’s “chief internet evangelist”, Vint Cerf, serves as a board member and Google is listed as a “generous financial supporter”. Catherine Tucker, a professor at MIT that has supported Google’s privacy positions, has received $55,000 in grants from the Net Institute, in addition to more than $150,000 in grants from Google itself.77 78 Tucker has also received $160,000 in grants from the Computer and Communications Industry Association, another organization that counts Google as a substantial financial backer and frequently lobbies for its policy interests.79 Google lobbyists have privately pushed conference organizers to feature Tucker as a panelist.80 The NET Institute also funds academics from lesser-known institutions in a way that creates an apparent body of scholarly research that supports Google’s policy positions. 74 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1627347 http://www.stern.nyu.edu/networks/Economides_Broadband_Openness_Rules.pdf 76 http://www.netinst.org/ 77 http://googletransparencyproject.org/articles/google-funded-speakers-dominate-policy-conferences 78 http://cetucker.scripts.mit.edu/docs/cv.pdf 79 https://www.ccianet.org/about/members/ 80 https://theintercept.com/2016/09/15/tech-money-lurks-behind-government-privacy-conference/ 75 July 14, 2017 14 The group has funded hundreds of research through smaller grants of up to $15,000 to assistant professors, associate professors and PhD students. According to its tax filings, the Net Institute has funded more than 100 white papers between 2013 and 2015 alone, many on key public policy issues important to Google. Those included; The Economics of the Right to be Forgotten; A Snapshot of the Current State of the Residential Broadband Networks; Dynamics of Technology Adoption and Critical Mass: The Case of U.S. Electric Vehicle Market; and News Aggregators and Competition Among Newspapers in the Internet.81 82 83 84 After publication, the research is often linked on numerous other scholarly research sites such as Google Scholar and the Social Sciences Research Network (SSRN) creating a multiplier effect. A keyword search on the SSRN research site returns approximately 850 white papers funded by the nonprofit, while Google Scholar returns 773 papers.85 i) Jonathan Band Jonathan Band at 2010 Google Holiday Party Jonathan Band is another example of a reliably Googlefriendly author who straddles the lines between lobbying, consulting and academia. Google may have funded him overtly; and he has also received significant funding from third-party groups that Google finances. Band, an adjunct professor at the Georgetown University Law Center, is a prolific researcher, who has published hundreds of white papers and delivered over 120 presentations on five continents. The papers, speeches and presentations mostly support Google’s positions on copyright reform, Google Book Search, fair use and other issues important to the company’s bottom line. At the same time, Band owns a consultancy called PolicyBandwidth.com, which says it helps “shape the laws governing intellectual property and the Internet through a combination of legislative and appellate advocacy.”86 On PolicyBandwidth.com’s website, Band notes only that his “clients include Internet companies, providers of information technology, universities, and library associations.” However, Google included Band’s name in a filing for the 2012 Oracle America Inc. v. Google America Inc. copyright case. In its disclosure, Google called Oracle’s accusations 81 http://www.netinst.org/Kim_Kim_15-02.pdf http://www.netinst.org/Malone_Nevo_Williams _15-06.pdf 83 http://www.netinst.org/Li_Zhou_15-10.pdf 84 http://www.netinst.org/Jeon_12-20.pdf 85 https://scholar.google.com/scholar?start=0&q=%22www.netinst.org%22&hl=en&as_sdt=0,9 86 http://www.policybandwidth.com/home 82 July 14, 2017 15 that Google funding influenced Band’s 2011 book, Interfaces on Trial 2.0, “off base.” Google did not, however, deny providing research funding to Band. Band has received hundreds of thousands of dollars in lobbying fees from organizations that Google funds or helped create. During that time, he has acted as a reliable advocate for Google’s public policy positions. Band typically authors such studies under the auspices of organizations such as the Computer & Communications Industry Association (CCIA) and the NetCoalition, two groups that count Google as a member and have received substantial Google funding. Lobbying records show Band and the NetCoalition have received about $600,000 in lobbying fees from the two organizations since 2000.87 According to disclosure records, Band lobbied for the NetCoalition from 2000 to 2012 to “promote [the] public policy agenda of Internet companies.” NetCoalition lobbying filings note that Band lobbied Congress and the U.S. Copyright office on “copyright statutory damages and IP enforcement”, two key policy issues for Google at the time. The NetCoalition’s website provides virtually no information about the activities of the group, its staff or employees, or the policy issues on which it is engaged, although an archived version of the website from 2006 notes a “strategic alliance” with Band’s PolicyBandwidth.com.88 Until late 2014, the NetCoalition website was registered to Maura Corbett with the Glenn Echo Group, a public relations firm that counts Google, the NetCoalition, CCIA and several other Google-supported coalitions as clients.89 The precise nature of the relationship between Band, Google, and the organizations Google supports financially remains unclear. However, his scholarship is overwhelmingly supportive of Google’s policy issues. Since 2000, Band has published more than 550 presentations, amicus briefs, white papers and articles on key Google policy issues related to orphan works, the Digital Millennium Copyright Act, the Google Book settlement, the Google-Oracle lawsuit and many others. At least 33 publications he lists on his site name Google in the title. Much of his scholarship includes no disclosure of the interests he’s representing, while other white papers and essays only note generally that he “represents Internet companies,” without disclosing which ones.90 91 92 87 https://soprweb.senate.gov/index.cfm?event=selectfields http://www.netcoalition.com/ 89 http://www.netcoalition.com/ 90 http://www.policybandwidth.com/publications#2000 91 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2186628 92 http://www.project-disco.org/intellectual-property/013114-house-of-cards-assessing-the-impact-of-softwareinfringement-on-manufacturing-competitiveness/ 88 July 14, 2017 16 He also aids Google in a wide range of legal disputes. Band has authored at least ten amicus briefs supporting Google’s arguments in prominent cases such as Authors Guild v. Google, which concerned the legality of Google’s mass scanning of books, and cases involving Google’s alleged facilitation of piracy such as Viacom v. YouTube and Perfect 10 v. Google.93 94 95 96 He has also given testimony to Congress or state assemblies at least 11 times without disclosing any financial ties to Google.97 ii) Daniel Rubinfeld and James Ratliff Daniel Rubinfeld and James Ratliff co-authored at least three academic papers that disclose Google funding: Online Advertising: Defining Relevant Markets, The Use And Threat Of Injunctions In The Rand Context and Is There A Market For Organic Search Engine Results And Can Their Manipulation Give Rise To Antitrust Liability? 98 99 100 The disclosure for one of the studies came as a correction after publication. 101 The authors would like it known that this study was supported by funding from Google. The authors have no prior involvement in any Google matters. The opinions are solely those of the authors and do not necessarily reflect the views of Google. We wish to thank Hal Varian for his helpful comments throughout. It isn’t clear how Google funded any of the three papers. Berkeley said it had received no funding from Google for Professor Rubinfeld. One possibility is that Google routed the funding through James Ratliff.102 Ratliff was an executive director at Compass Lexecon, an economic consulting firm where academics can earn more than $1,000 an hour. A recent investigation by ProPublica examined allegations that the consulting firm employed “junk science” designed to produce results favorable to its corporate clients.103 “This is not the scientific method,” a Princeton economist told ProPublica. “The answer is known in advance, either because you created what the client wanted or the client selected you as the most favorable from whatever group was considered.” Rubinfeld and Ratliff’s papers also reached the conclusions that Google favored, such as rebutting the charges that the FTC and European Commission were then investigating. 104 93 http://www.policybandwidth.com/briefs http://www.librarycopyrightalliance.org/storage/documents/amicus-googlebooksappeal-final-8jul2014.pdf 95 https://www.eff.org/files/2013/11/01/amicus_brief_computer_and_communications_industry_assn.pdf 96 http://www.policybandwidth.com/briefs/ccia-nc-viacom.pdf?attredirects=0 97 http://www.policybandwidth.com/testimony 98 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734015 99 https://www.law.berkeley.edu/files/Ratiff-Rubinfeld_Jan2013.pdf 100 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2473210 101 https://academic.oup.com/jcle/article/7/1/241/750998/ONLINE-ADVERTISING-DEFINING-RELEVANTMARKETS 102 http://www.compasslexecon.com/professionals/bio?id=124 103 https://www.propublica.org/article/these-professors-make-more-than-thousand-bucks-hour-peddling-mega-mergers 104 https://www.law.berkeley.edu/files/Search_Engine_Paper(1).pdf 94 July 14, 2017 17 “In recent years, Google has been accused of manipulating its organic search results to favor its own services,” they wrote. “These allegations have often been accompanied by appeals for regulatory or antitrust intervention. While often asserted with passion, the public protestations about alleged antitrust violations are often made without legal or economic rigor.” Correspondence obtained through open-records requests also shows Rubinfeld thanking Google’s antitrust counsel Matthew Bye for his support and sending him the article that resulted. 105 Though Berkeley said it had not received funding from Google for Rubinfeld, it did acknowledge receiving $15,000 from the company for the Berkeley Center for Law and Technology in 2013, and $66,500 from Google for another Berkeley law professor, Paul Schwartz, in 2011. iii) Marvin Ammori Marvin Ammori is another notable example of a scholar that straddles the lines between Google consultant, an academic directly funded by Google, and someone who receives indirect financial support from Google funded universities and third-party groups. Ammori’s consulting firm, the Ammori Group, counted Google as a founding client.106 Google was also a founding member of Engine Advocacy, where Ammori is a board member.107 108 At the same time, Ammori wrote regularly on policy matters dear to Google as a Future Tense Fellow at the New America Foundation. Google and its top executives have contributed more than $1 million to New America. Google’s executive chairman, Eric Schmidt, has also served as its chairman. Ammori is a Google consultant and author of Google-funded papers 105 https://www.documentcloud.org/documents/2837229-BERKELEY-12-17-15-BERKELEY.html#search/p2/Rubinfeld https://web.archive.org/web/20120111144221/http://ammorigroup.com/clients-2/ 107 https://en.wikipedia.org/wiki/Engine_(organization) 108 http://www.engine.is/about/ 106 July 14, 2017 18 Ammori was also an affiliate scholar at the Stanford Center for the Internet and Society, which Google has also financed heavily.109 Ammori’s published scholarship has closely tracked the issues on which Google has lobbied most heavily. They also almost always echoed Google’s position on those issues. In February 2011, Ammori and Luke Pelican, a Google Policy Fellow, authored a study arguing against the imposition of “Do Not Track” privacy rules, saying it would “impose a tax on publishers” thus threatening media diversity by reducing the availability of free (advertising supported) content online.110 The previous December, the Federal Trade Commission (FTC) had published a staff report proposing implementation of a “Do Not Track” mechanism that allowed consumers’ to choose whether to allow websites to track their online search and browsing activities.111 Google and online advertisers strongly opposed “Do Not Track” initiatives, which would make it harder for them to collect the data on user activities it uses to sell to advertisers. Google argued such rules would create an “unnecessary, unenforceable and unconstitutional regulatory burden on Internet commerce.112 In May of 2012, Ammori and Pelican, authored a study entitled Proposed Remedies for Search Bias: 'Search Neutrality' and Other Proposals in the Google Inquiry that supported Google’s position on so-called search neutrality, the proposition that Google could not favor its own products in its search results.113 The study referred to supporters of search neutrality as “Google’s complaining competitors” and argued, “[T]he cures proposed by the competitors are worse than Google’s alleged disease.” Again, the timing was suggestive: Throughout 2012, Google was the subject of highprofile antitrust investigations by the FTC and European Commission (EU) over “search bias” and claims that Google manipulated its results to penalize online competitors. Ammori’s disclosure page notes that he advises “Google and Dropbox pretty regularly on legal and policy issues, including on free expression, copyright, and government surveillance issues.114 I’ve done a little work on patents as well. Though I sometimes give them my thoughts on net neutrality, I never speak for Google on the issue.” Ammori has faced criticism for failing to disclose his ties to Google while writing articles against anti-piracy bills that Google opposed.115 One of Ammori’s op-eds was later updated with a disclosure that he represented Google in the legislative fight. 109 https://cyberlaw.stanford.edu/about-us https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2292571 111 https://www.ftc.gov/news-events/press-releases/2010/12/ftc-staff-issues-privacy-report-offers-framework-consumers 112 https://cdn.arstechnica.net/oppositionletter.pdf 113 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2058159 114 http://ammori.org/consulting/ 115 http://www.slate.com/articles/technology/technology/2014/03/sons_of_anarchy_creator_kurt_sutter_google_s_copyri ght_stance_is_bad_for.html 110 July 14, 2017 19 Ammori has also been criticized by public interest groups for mixing his corporate and public interest advocacy. “He wants it both ways,” said Mark Cooper, director of research for Consumer Federation of America.116 “He wants to be a public interest lawyer, but he also wants to represent private clients, and the way that he’s gone about it has made it hard for anyone to trust him again.” 116 http://watchdog.org/231112/charter-net-neutrality/ July 14, 2017 20 4) Google-funded Research Used for Lobbying Google-funded papers and academics are cited by Google and its proxies, often without disclosure, to influence public policy battles and lawsuits in which Google is involved. In answers to Congress in 2011, Eric Schmidt, then chief executive of the company, cited a study by David Balto without noting that Google had paid for the study. 117 118 In written answers to the head of the Senate Antitrust Committee after a hearing on The Power of Google: Serving Consumers or Threatening Competition, Schmidt wrote: Eric Schmidt cited a Google-funded paper in answers to Congress without disclosing funding “As David Balto, the former policy director of the Federal Trade Commission recently observed: ‘Google has consistently led the industry in innovations, and played an important role in the evolution of search. Websites such as Facebook, Amazon, eBay, Expedia and Wikipedia all aggregate and organize information, steering users away from traditional search providers such as Google, Bing and Yahoo. Facebook is a particularly dangerous threat to the traditional search providers because it not only takes traffic from Google, Bing and Yahoo, but it is also a source of redirected traffic for original content providers.” Balto himself has previously been criticized for concealing his financial relationship with Google. In 2012, technology publication GigaOm published an article by the former FTC official, who wrote that Apple and Microsoft’s involvement with “patent trolls” was bad for cellphone innovation.119 The issue was of central importance to Google at the time. Balto failed to disclose his relationship with Google, prompting an editor’s note from GigaOm: “Editor’s note: Before publishing this article, we asked a representative for the author whether the author had ever had a commercial relationship with Google, paid or unpaid. The representative said no. It turns out that was untrue. The author, in fact, has been paid by Google to write pro-Google white papers. Had we known of that fact, we would never have published this piece. We apologize to our readers.” On another occasion in 2013, Google lobbyist Johanna Shelton sent a Balto op-ed to R. David Edelman, a key White House technology official.120 “Thought this David Balto 117 https://www.documentcloud.org/documents/2837262-FTC-Docs-1311google-201300860.html#search/p82/David%20Balto 118 http://www.dcantitrustlaw.com/assets/content/documents/2011/googlesearchfinal.1.pdf 119 https://gigaom.com/2012/08/05/apple-and-microsofts-patent-troll-spells-trouble-for-smartphone-innovation/ 120 https://www.documentcloud.org/documents/2998414-OSTP-GOOGLE-DOCS.html#search/p1426/Balto July 14, 2017 21 piece might interest you,” Shelton said, copying an excerpt without noting Google’s funding of the author. Only if the White House official had clicked through to the article would he have seen a disclosure: “Balto has also published research and authored scholarship for Google on technology policy topics.” Google’s lobbyist sent an op-ed to a White House official without noting that it funded the author At the time, Google was engaged in a high-stakes patent fight with rivals such as Apple and Microsoft.121 The White House came out that year with measures against so-called patent trolls.122 Google’s lawyers have also pushed Google-funded papers to defend it against government action. In 2012, as the FTC was investigating Google for potential antitrust violations, Google’s outside counsel Susan Creighton cited a study by Harvard Law School’s Einer Elhauge in a letter to the FTC chairman, Jon Leibowitz. Creighton didn’t disclose Google’s payments to Elhauge.123 124 Studies from other Google-funded authors were also included in the materials sent by Creighton to the FTC chairman.125 Those included the work of Michael Salinger of Boston University, a former Director of the FTC’s Bureau of Economics who was a paid Google advisor during the FTC investigation and later wrote a paper about it with Robert Levinson, another Google consultant. 126 127 121 https://techcrunch.com/2013/10/31/apple-microsoft-backed-rockstar-consortium-sues-google-samsung-over-7-nortelpatents/ 122 https://obamawhitehouse.archives.gov/blog/2013/06/04/taking-patent-trolls-protect-american-innovation 123 https://www.documentcloud.org/documents/2837593-DOCS-FTC-Wilson-Sonsini-Memo.html#search/p5/Elhauge 124 https://poseidon01.ssrn.com/delivery.php?ID=634087103098020017103093115017113070055022030067038035066 0690701180031090760751160731070130200350050311160861170180980060011190170360660650111271170800790 0200310802903305102006800708802609510306811911007 125 https://www.documentcloud.org/documents/2837593-DOCS-FTC-Wilson-Sonsini-Memo.html#search/p5/Elhauge 126 http://www.crai.com/engagement/google-search-investigation July 14, 2017 22 In court, Google often gets the academics it funds to weigh in on its behalf. In 2009, for example, several academics signed an amicus brief supporting Google in The Authors Guild et al. v. Google Inc. case.128 At least four of the signers of the brief received direct funding from Google or were employed by institutions receiving substantial Google support: Einer Elhauge; Daniel Sokol; Joshua Wright and George Mason Law School’s Todd Zywicki. In a footnote accompanying the brief, only Elhauge disclosed his Google connections. “Professor Elhauge has received research funding for his work underlying this brief from Google, Inc. The views expressed, however are his own. None of the other Amici listed below who will join the brief have received any compensation related to this matter.” 127 https://www.law.northwestern.edu/researchfaculty/searlecenter/events/internet/documents/Salinger_Economics_of_Google_and_Antitrust_Case_Searle_conference _version.pdf 128 https://www.documentcloud.org/documents/2837633-3-23-15-TX-AG-DOCS.html#search/p612/Crane July 14, 2017 23 5) The Subjective Nature of Google-funded Academic Disclosure While Google has long argued for openness and transparency, the company and the academics it funds often seem to fall short in applying such a standard to themselves.129 A review of the academic papers showed there was no single standard for disclosure of Google funding. Rather, the decision whether or not to disclose was left entirely up to the academics themselves. In some cases, they disclosed Google grants in their curriculum vitae; in others, disclosures were made on personal blogs or university pages. In other cases still, disclosures of Google funding were included as footnotes in academic papers, while in many others there were no disclosures at all — even when academics had directly received Google funding and the paper supported Google’s policy interests. When contacted by reporters on the issue, some academics argued that they were only obliged to disclose funding that was specifically earmarked for that particular paper, not any prior funding or ongoing general grants. The following are some of the most significant examples of Google-funded studies that lacked proper disclosure: i) Mark Lemley, Stanford University As the director of Stanford’s Law, Science and Technology program, Mark Lemley has authored more than 150 research papers on patent, copyright trademark and other issues, many of which appear to support Google’s positions.130 Stanford’s Mark Lemley has extensive financial ties to Google. “I am not an unbiased observer.” At the same time, Lemley has important financial connections to Google. He has acted as outside counsel to Google; his spouse was a Google employee; and he was named by Google when ordered by a judge to disclose which commenters on the case were on its payroll.131 In a 2009 paper about the Google Book Search settlement, Lemley provided a fulsome disclosure of his relationship with Google.132 “The reader should be aware that I represent and have been compensated by Google in the case and settlement I analyze here, and that my wife is employed by Google, so I am not an unbiased observer.” He hasn’t always been so forthcoming—before or since. In a 2007 white paper entitled Rationalizing Internet Safe Harbors, Lemley wrote, “I should note that I currently represent or have in the past represented various Internet intermediaries including Google, 129 https://googleblog.blogspot.com/2009/12/meaning-of-open.html https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=32215 131 https://musictechpolicy.files.wordpress.com/2010/09/google-shill-list-2.pdf 132 https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=1431555 130 July 14, 2017 24 eBay, and Pacific Bell Internet Services.” 133 Yet in other papers that broadly supported Google’s policy positions, no such disclosure was included.134 In 2016, Lemley co-authored a paper decrying the growing corporate influence among academics writing about intellectual property matters.135 “We have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy de-bates in the field,” Lemley and his co-authors wrote. Daniel Sokol joked he’d be sipping Mai “[T]he flow of dollars can have an insidious effect on Tais in Hawaii if he were being values scholars hold dear in academia,” they warned. sponsored by a company. He later “We have seen evidence in other fields that researchers disclosed he consulted for Google who receive gifts and support can have an uncanny tendency to find results that would please their benefactors. One must be mindful of the delicate pull of friends with money.” The authors issued a “Call to Action” urging colleagues to adopt a set of professional ethical norms governing disclosure, transparency and conflicts of interest. Among other things, they suggested authors should disclose: i) any sources of funding that contributed to the production of a given piece of research, ii) all sources of funding and all paid consulting or legal representation agreements in any way relevant to their research or that concern the same subject matter as their research and iii) all sources of funding for any institution they direct. However, Lemley has not followed his own proposed standards since. In a string of papers and articles published since his Call to Action, Lemley failed to note his financial connections to Google. Those included The Patent Crisis and How the Courts Can Solve It,136 The Surprising Resilience of the Patent System,137 How Often Do Non-Practicing Entities Win Patent Suits?138 Patent Purchases and Litigation Outcomes139 among many others.140 ii) Daniel Sokol, University of Florida Daniel Sokol is a professor at the University of Florida. He is also Senior Of Counsel at Google’s main antitrust outside law firm, Wilson, Sonsini, Goodrich & Rosati. Along with another Wilson Sonsini lawyer, Sokol published a paper in January 2016 on an issue of 133 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=979836 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117302 135 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714416 136 https://osf.io/preprints/socarxiv/kyw5a 137 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714416 138 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2750128 139 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2879691 140 https://scholar.google.com/scholar?as_ylo=2016&q=mark+a+lemley&hl=en&as_sdt=0,9 134 July 14, 2017 25 seminal importance to Google entitled: Does Antitrust Have a Role to Play in Regulating Big Data?141 His answer—no—was in line with Google’s policy view, that antitrust enforcers examining deals like its takeover of DoubleClick should not consider privacy implications, as one FTC commissioner had argued.142 Sokol’s paper argued that “antitrust law is ill-suited to police Big Data and its use by online firms” and that “the empirical case regarding Big Data as an antitrust concern is still lacking.” In fact, the lack of empirical evidence, robust theories or indeed legal precedent suggests that there is no cause for concern in this arena. All that is available at present are general theories of exclusion applied to this new area. Until theories of harm can be matched with specific factual circumstances and negative economic competitive harm can be shown, the antitrust case against Big Data is a weak one. The existing theories of harm conflict with the realities of Big Data (e.g., nonrivalrous, ubiquitous, low barriers to entry noted above) and consumer online behavior (e.g., multi-homing, Salinger and Levinson 2015). And while the case is weak, and the theories uncertain, antitrust authorities should proceed with caution. Antitrust intervention over market forces threatens consumer welfare, especially is fast moving markets, and proposed remedies, such as limiting the collection and use of Big Data or forcing large firms to share with rivals, are likely to harm competition and innovation, and in fact may raise privacy concerns (emphasis added). Still, Sokol insisted, in a tongue-in-cheek disclosure that his work was purely academic. “As a disclaimer, this is purely academic work — nobody sponsored it or offered to sponsor it. If they did, we would be sipping Mai Tais with our respective friends and families on a beach in Hawaii based on the proceeds of such a sponsorship. We are not.” Six months later, in July of 2016, Sokol co-authored another white paper entitled Understanding Online Markets and Antitrust Analysis, which included a little more in the way of disclosure.143 “Professor Sokol in his capacity as Senior Of Counsel at Wilson Sonsini Goodrich and Rosati consults for a number of companies involved in online markets, including Google,” the authors now stated. Media scrutiny may have been a factor in Sokol’s revised disclosure. Throughout the summer of 2016, several news stories highlighted Google’s growing influence with the Obama Administration and in academia.144 A GTP study exposing Google-funded academic speakers at several policy conferences was published only days before Sokol’s white paper submission.145 141 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2723693 https://www.ftc.gov/sites/default/files/documents/public_statements/statement-mattergoogle/doubleclick/071220harbour_0.pdf 143 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2813855 144 https://theintercept.com/2016/04/22/googles-remarkably-close-relationship-with-the-obama-white-house-in-twocharts/ 145 http://googletransparencyproject.org/articles/google-funded-speakers-dominate-policy-conferences 142 July 14, 2017 26 iii) George Loewenstein, Carnegie Mellon University The scattershot nature of what rises to the level of disclosure can also be illustrated by George Loewenstein, a professor of economics and psychology at Carnegie Mellon University. Loewenstein co-authored several privacy-related white papers with other Google-funded academics like Alessandro Acquisti.146 147 However, Loewenstein did not disclose in any of the privacy papers a seemingly-relevant connection to Google. According to his curriculum vitae, he sits on the scientific advisory board of Verily, a company formerly known as Google Life Sciences that is part of the same parent company, Alphabet Inc. 148 Carnegie Mellon’s Loewenstein also sits on the scientific advisory board of Verily, part of Google’s parent Verily seeks to mine health and genetic information on patients and has raised ethical concerns over deals to amass data from clinics and, in a pilot program, with the National Institutes of Health.149 150 Loewenstein doesn’t disclose if, or how much, he has been paid by Google or its parent for his services. Loewenstein has previously argued against disclosing conflicts of interest. In a 2003 white paper, The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest, he argued that disclosure may in fact have “perverse effects” that lead “experts to give biased and corrupt advice.”151 iv) David Crane, University of Michigan Internal correspondence obtained through open-records requests shows how Google has actively recruited academics to write friendly papers with promises of funding. In 2011, the company courted Daniel Crane, a University of Michigan professor specializing in antitrust issues, to write an academic paper on “search neutrality”. At the time, the FTC was gearing up for a major antitrust investigation into the company’s practices. Google was keen at the time to stop the concept that it could not favor its own products in its search results from taking root. Michigan’s Crane was courted by Google to write a paper 146 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430482 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2765111 148 https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiO16D2 qIPSAhUIOiYKHfyuDlQQFggbMAA&url=http%3A%2F%2Fwww.cmu.edu%2Fdietrich%2Fsds%2Fdocs%2Floewens tein%2Fcv.doc&usg=AFQjCNHdzNRDuP_vZ-DNhwtEneFlJ6Qk9g&sig2=Q2t 149 https://www.statnews.com/2016/04/07/google-verily-ethical-questions/ 150 http://www.reuters.com/article/us-health-us-precisionmedicine-idUSKCN0VY1BL 151 https:/papers.ssrn.com/sol3/papers.cfm%3fabstract_id=480121 147 July 14, 2017 27 Google’s lobbyist offered Crane funding to write about antitrust issues then affecting the company On July 15, 2011, Google legal assistant Yang Zhang emailed Crane to ask about his interest in a Google Research Grant for the search neutrality paper. 152 “Just wanted to follow up with you and see if you are still interested in working with us via Google Research Grant,” Zhang wrote.” A month later, Zhang emailed Crane again: “Hi Dan – just following up on the e-mail below. Would be great if you can let me know whether we can still work together via the research grant.” Several months later, Crane appeared to demur on the offers of funding, responding: “At this point, I’m still developing my ideas on Internet search and think it’s best if I do my own thing for the time being.” However, he continued: “I’ve got a draft paper on search neutrality that I should be able to share before too long and perhaps we can revisit after that.” In November, Crane emailed a draft of his search neutrality paper to Google officials, writing “Any reactions would be greatly appreciated.”153 Google’s Kovacevich promised to “get some reactions back to you next week.” The paper was a rebuttal of the principle, opposed by Google, that search engines should not favor the company’s own products. “Count me a skeptic,” Crane wrote. “…[A] general principle of search neutrality would pose a serious threat to the organic growth of Internet search.” Google then asked Crane to present his paper at conferences. 152 153 https://www.documentcloud.org/documents/2837668-UM-3-8-16-UM.html#search/p1/Crane https://www.documentcloud.org/documents/2837668-UM-3-8-16-UM.html July 14, 2017 28 Although Crane rebuffed Google’s aggressive offer of money for his paper, he did send Google a copy of the paper for comment. v) Michael Carrier, Rutgers Law School Michael Carrier’s research on copyright shows how Google combines its funding of academic research and grassroots advocacy to support policy issues important to the company, amplifying its effect using its network of other paid academics, scholars and bloggers. The citation network analysis in this study also shows how Google-funded academics often cite each other. This case study shows how Google-linked bloggers often pick up those studies and broadcast them to a wider, non-academic audience. As an antitrust and intellectual property law professor at Rutgers Law School, Carrier has written numerous studies supporting Google’s policy views on copyright and intellectual property issues. In July 2011, Carrier received $40,000 through a program overseen by Google’s senior public policy manager, Derek Slater, to undertake research on copyright, secondary liability and innovation. While the research award was characterized as an “unrestricted” grant, Google’s approval letter made clear that Google expected to be updated and kept informed of Carrier’s progress. Google’s lobbyists said they intended to conduct annual reviews of the academics progress. July 14, 2017 29 Derek Slater letter acknowledging $40,000 research grant to Michael Carrier At the time, Google was heavily involved in fighting bills in congress that would have held internet firms responsible for publishing pirated material. In July 2012, Carrier published Copyright and Innovation: The Untold Story.154 Carrier disclosed Google’s support of his white paper in the acknowledgements, although the citation network includes at least eight other white papers he has authored in support of Google’s policy positions in which no disclosure was included. Carrier also said that two Google employees—Slater, who had paid him the $40,000, and Fred von Lohmann, Google’s copyright counsel, helped Carrier formulate the interview questions used as the basis for his white paper. Others who helped Carrier frame the questions included three other academics who had received Google funding for their research: Peter DiCola, Michael Smith and Rahul Telang. Slater’s involvement in commissioning the research was also telling. He was the Google lobbyist responsible for coordinating with third-party groups and building Google’s online activism campaign to rally more than seven million users to oppose the copyright bills.155 In May 2013, Mike Masnick, the founder of the popular technology blog TechDirt and the non-profit Copia Institute, picked up on Carrier’s white paper, writing a long defense of his “detailed and thoughtful article” for the Wisconsin Law Review.156 Masnick also 154 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2099876 155 https://www.linkedin.com/in/derekslater/ 156 http://wisconsinlawreview.org/wlr-online-volume-2013-no-5/ July 14, 2017 30 wrote several blog posts about Carrier’s research and moderated a 2014 panel in which Carrier presented the paper. A Masnick blog following the panel titled Innovation Asymmetry: Why the Copyright Industry Always Freaks Out About New Technologies again praised Carrier’s work.157 In 2012, Google was forced by a judge to disclose that Masnick had written several studies commissioned by the Google-funded Computer and Communications Industry Association.158 Masnick’s Copia Institute is also a recipient of Google funding.159 Google is a financial supporter of Mike Masnick’s nonprofit Copia Institute Masnick failed to disclose Google’s support in his Wisconsin Law Review defense of Carrier’s work. 157 https://www.techdirt.com/blog/innovation/articles/20131220/00174325644/innovation-asymmetry-why- copyright-industry-always-freaks-out-about-new-technologies.shtml 158 https://musictechpolicy.files.wordpress.com/2010/09/google-shill-list-2.pdf 159 https://copia.is/ July 14, 2017 31 6) Reach of Google-Sponsored Research Our analysis shows that Google pays for a large number of papers, but what’s their effect on the public policy debate? As previously discussed, Google executives often send them to regulators, legislators and journalists without disclosing their sponsorship of the paper, or have the academics appear in conferences to present their work. But the reach of the Google-funded papers extends yet further, because they often help inform other policy papers on the subject. To quantify their reach, we collected a list of every article on Google Scholar citing the 330 Google-funded papers we identified and analyzed these citations as a network.160 The analysis, a detail of which is seen below, found that Google-funded papers have a surprisingly broad reach, despite the fact that few of them are in peer-reviewed publications. The full, interactive visualization can be explored at googletransparencyproject.org Figure 5. The network analysis shows how Google has funded a self-sustaining universe of scholarship that appears to sustain its policy positions, and how it reaches beyond the Google funded universe 160 Google Scholar uses machine learning and automation to build its database of academic citations. As such, some citations are improperly formatted or included in error. We omitted these results where possible, but some errors may have been carried over. We also omitted citations that were entirely in a non-Latin alphabet, as we were unable to verify their contents July 14, 2017 32 The 330 Google-funded articles that we identified were cited nearly 6,000 times in more than 4,700 unique articles. Our analysis shows that even self-published research supported by Google receives frequent mention in other works published on Google Scholar. The principal reason is that they are frequently cited by other Google-funded authors, thereby creating an impression of an extensive body of scholarship that sustains the company’s policy positions. Between them, Google-funded authors create an “echo chamber” that then appears to encourage other authors not funded by the company to cite their papers. Figure 5 shows the universe of articles citing Google-sponsored research (un-cited articles omitted). Blue nodes represent Google-funded papers and pink nodes represent unfunded papers that cite them. Larger nodes are cited more frequently. Nodes that are closer together have more citations in common. The network analysis suggests the following: • Google’s influence reaches far beyond the papers that it commissions. More than 4,600 unfunded papers cite Google-funded scholarship. • Google-sponsored academics frequently cite each other, giving the impression of a growing body of legitimate research on topics of importance to the company. More than one third (119) of the Google-funded papers that we identified cited at least one other Google-funded paper. • Many papers cite several Google-funded papers to build their arguments. Googlefunded academic Alessandro Acquisti cited 13 other Google-funded papers in his study, “The Economics of Privacy.” • Nearly one fifth (783) of the papers not funded by Google in the citation network cited more than one Google-funded study. • Some of the most-cited Google-funded papers were not peer reviewed. For example, more than 225 papers cited Jennifer Urban and Laura Quilter’s article arguing that Digital Millennium Copyright Act takedown notices have a “chilling effect” appeared in the Santa Clara High Technology Law Journal. Urban and Quilter’s paper was cited despite the fact that the Santa Clara High Technology Law Journal does not appear to have a formal peer review process.161 The dense citation network around Google funded research creates a veneer of legitimacy in two ways. First, citations to external sources lend credibility to Google-funded scholarship. Second, inbound citation counts drive a paper’s overall influence on Google Scholar and other citation-based search engines that do not take journal quality or influence into account. 161 http://digitalcommons.law.scu.edu/chtlj/submissions.html July 14, 2017 33 The thousands of citations from Google funded and unfunded papers create an “echo chamber” around Google-sponsored research that amplifies its legitimacy and importance in public policy debates. Methodology Our database of Google-sponsored research began with anecdotal inquiries into conference proceedings of policy issues of interest to Google and curricula vitae of authors with known ties to the company. We supplemented this research with three structured searches of Google Scholar, described in detail below. While this methodology resulted in a significant number of policy papers that could be traced through their authors to Google funding, this dataset is by no means comprehensive. For the first structured search, we built a database of recipients of direct Google research support using the company’s own disclosure pages.162 We then searched for award recipients’ names on Google scholar in conjunction with keywords for relevant policy issues: antitrust, search neutrality, net neutrality, search bias, copyright infringement, patent lawsuit, intellectual property, data security, fair use', 'anticompetitive, public policy, regulation, regulatory, tax, taxation, taxes. We then restricted the results for each author to papers published after the year in which she received her first Google award. Finally, an analyst sorted through these papers manually to determine a) correct author identification, b) relevance to policy issues of interest to Google, and c) whether the author acknowledged Google support in the paper. The second structured search targeted papers that explicitly acknowledged Google support. We searched Google Scholar for the concurrence of the policy keywords identified above with acknowledgement language: “grant from Google,” “support from Google,” “funding from Google,” “fellowship from Google,” “Google grant,” “Google fellowship,” “Google funding,” “Google research grant,” “Google * fellowship,” “grateful to Google,” “thanks to Google,” “thank Google, thanks Google.” An analyst manually sorted through these papers to verify a) whether the responsive phrase was in fact an acknowledgement of Google support, and b) relevance to policy issues of interest to Google. In the final structured search, we compiled a list of all of the authors of papers identified in the second structured search and in anecdotal research, and searched Google Scholar for their names alongside the policy keywords used in the previous two searches. We sought papers by authors who may have acknowledged Google support in one publication but not in other papers addressing the same topic. An analyst manually reviewed the results of this search to verify a) whether the paper was published after the date of first known Google support, b) relevance to policy issues of interest to Google, and c) whether the author acknowledged Google support in the paper. 162 https://research.google.com/research-outreach.html#/research-outreach/faculty-engagement/facultyresearch-awards; https://research.google.com/research-outreach.html#/research-outreach/facultyengagement/focused-research-awards; https://www.google.com/policyfellowship/ July 14, 2017 34 To construct the citation network, we iterated through our completed database of Googlefunded papers on Google Scholar and clicked the “cited by…” link on each article. We gathered data on each article that cited a Google-funded paper. An analyst manually cleaned this data and omitted results in alphabets other than the Latin alphabet, because those citations could not be verified. Academic Standards of Google-funded Research Despite its reputation for scientific rigor, Google-sponsored academic studies largely fail to meet commonly-accepted academic standards. Our research identified 330 scholarly papers dealing with public policy issues of interest to Google written by academics who received direct or indirect financial support from Google. Many of these papers were published in non-peer reviewed venues. Some of these papers appear as white papers through think-tanks or self-publication services like the Social Science Research Network (SSRN). SSRN has no process for reviewing or rejecting articles; anyone with a password can upload a paper to the SSRN e-library. Due to the low barriers to submission and “publication” on SSRN and similar venues, academic institutions do not view works published exclusively on these sites as academic publications of the same importance as articles published in peer-reviewed journal. Typically, scholars who post work on SSRN without cross-posting to a journal version of the same article either never submitted the article for peer review, or did so and were rejected. The former case is unusual due to academic incentive structures (such as the tenure process) that discount self-published research. It is more common to keep working papers on SSRN while attempting to publish them in a traditional journal even after rejection, but it is for precisely this reason that academics rarely cite self-published research. Other papers appeared in lower-ranked law journals. Peer review is not yet standard practice in legal scholarship as it is in other disciplines. At most law journals, student editors review papers written and signed by established legal scholars. Citation-based search algorithms that do not take publication venue into account, such as Google Scholar, greatly overstate the authoritativeness of pro-Google legal research. To individuals unfamiliar with standards for academic research — including many policymakers and journalists — these search results can be extremely misleading. July 14, 2017 35