Google FTC Decision Prompts Whistleblower Probe

Google’s recent antitrust investigation by the US Federal Trade Commission (FTC) is now coming under scrutiny by a congressman, concerned at the news leaks during the probe.

US Rep. Darrell Issa (R-Calif.), chairman of the House Committee on Oversight and Government Reform, sent a letter 3 January to the FTC’s investigator general, Scott Wilson, asking him to immediately probe the media leaks, which Issa argued could have influenced the case.

News Leaks

Google essentially received a hand slap from the FTC after a 19-month investigation into allegations that the company had been manipulating its search algorithms to favour Google’s results over competitors. The FTC ruled that not enough evidence existed to prove such allegations. Instead, the company entered into a voluntary agreement with the FTC to change some of its business practices.

The problem, Issa stated in his letter to Wilson, is that multiple anonymous leaks to several news sources surfaced during the course of the probe. Such leaks are barred by law from occurring during FTC investigations until a decision is ultimately reached and announced by the agency.

“Throughout the process, non-public information about developments in the investigation has been inappropriately shared with the media,” Issa wrote in his letter to Wilson. “It is believed that the commission may be contributing to, or is the source of, this information. This is of concern because such leaks are prohibited by law and counterproductive to the investigative process. To determine whether the commission, or its staff, has shared non-public information with the public or the press about the investigation of Google, I request the Office of Inspector General promptly investigate the matter.”

Such leaks, Issa wrote, are prohibited by the FTC Act and the commission’s own operating manual, which “preclude the commission and its staff from disclosing nonpublic information to the public and media. Moreover, information that may be disclosed must be ‘for attribution and on the record,'” which was not done in the news reports about the case before a final decision was announced on 3 January. “Unfortunately, unnamed and anonymous sources have provided the media with non-public developments in the investigation of Google.”

Unfair Influences?

Other lawmakers had made similar comments, Issa wrote in his letter to Wilson.

“Indeed, US Senator Ron Wyden (D-Ore.) recently wrote to [FTC] Chairman Jon Leibowitz raising concern that ‘it has continually been the case’ that ‘confidential details of internal discussions’ about the investigation of Google have been revealed to the media,” wrote Issa. “In addition, US Senator John Kerry (D-Mass.) recently stated, ‘FTC investigations and settlement negotiations have, unfortunately, become poorly kept secrets. And … neither the commissioners nor the business subject to their jurisdiction can do their jobs well if their deliberations or investigations are manipulated or leaked for strategic advantage.'”

Now that the Google case has been decided by the FTC, Issa said he wants Wilson to find out just who made the leaks, which could have unfairly influenced the case.

“To discover the source of the leaks as well as the depth of non-public information disclosed, I request your office initiate an investigation as soon as possible,” wrote Issa.

A spokesman in Wilson’s office could not be reached for comment late in the afternoon of 8 January.

Federal Whistleblowers

Gene Policinski, senior vice president and executive director of the First Amendment Center, a non-profit educational group focused on First Amendment issues, said that requests for probes after press leaks have been around as long as governments have been in existence.

“Historically, there’s been a tension between government, which often doesn’t want anything to come out except for what they want to be known, and the press,” Policinski told eWEEK. “This is not a new issue.”

What is new today, though, is that the Obama administration has ramped up attempts to prosecute whistleblowers as tensions continue to build due to the added issues of national security and leaks, he said.

Often members of the media are getting their news leaks from government officials who are driven by their consciences rather than by orders, said Policinski.

When such leaks happen, the government typically goes after the people who do the leaking rather than pursuing the journalists who published the supposedly secret information, he said. “That’s the path our government has followed for over 200 years.”

At the same time, there is no federal shield law that protects a journalist from prosecution or other consequences if they publish information that is not made public, he said. “So as a journalist, if you are summoned before a federal panel your options are to make a decision on whether or not to disclose your sources and take your chances.”