A German Email Service Claims Google Search Falloff is a DMA Violation

Report from Reuters

In Brief – Tuta Mail, a German encrypted email service, has complained to the European Commission that Google has violated the EU’s new Digital Markets Act (DMA) by changing how its search service treats the email company’s website, leading to a fall in traffic of 90% to its site. The email company, considered a top provider of highly secure email, submitted a formal complaint to the Commission’s DMA task force claiming that it was previously well-positioned for many keywords related to encrypted email, but now only appears highly for Google searches mentioning its brand name. Tuta’s CEO expressed frustration over the lack of clarity from Google regarding the change to its search algorithms, while Google denied allegations of preferential treatment towards its own products, asserting that search updates are intended to provide users with relevant and useful information and not to benefit any website.

Context – Putting European Commission regulators into the middle of complaints over how Google changes search algorithms promises endless business for the company’s new regulators. It is a morass that has plagued the Internet ecosystem for more than 20 years. Nearly every web-based business has generated a large share of its new business traffic through search, especially Google search, and intermittent changes to the Google algorithms have always posed a risk of major hits to traffic. Google has always been relatively non-transparent about specific reasons traffic fell claiming it was necessary to avoid “gaming” search algorithms. Search complaints were a big part of the “Google Shopping Case”, with the Commission accusing Google of unfairly downgrading vertical search providers. That case stretched on for so many years that it was one of the drivers of the DMA being enacted to regulate the giant platforms. Google search is a zero-sum game for websites because only a few can fill prime positions. Losers often feel aggrieved. Google said that this would happen from its recent DMA compliance changes as well. The EU referees are certain to hear endless advice on how Google should do search in a fair way from here on out.

The FCC Finally Enacts Net Neutrality Rules After Three Year Delay

Report from the New York Times

In Brief – As fully expected, the Federal Communications Commission (FCC) voted to reinstate Net Neutrality (NN) rules that largely parallel the ones enacted by the FCC in 2015 during the Obama Administration and were rescinded in 2017 by the FCC during the Trump Administration. They were enacted on a 3-2 party-line vote with Democrats in favor and Republicans opposed. The rules classify broadband internet access as a public utility, giving the FCC the authority to demand broadband that providers report and respond to outages, as well as expanding the agency’s oversight of the providers’ security issues. The multi-decade fight over net neutrality was initially focused on the prospect that phone and cable providers would block or slow down websites that competed with their core businesses. More recently, a top concern has been internet access service providers creating so-called internet fast lanes where web sites would need to pay for their data to be prioritized to entice consumers to use their services. The Democratic commissioners argued that internet access is a basic and fundamental service that should be regulated alongside other utilities, while the Republicans argued that the lack of problems in the years since the initial rules were repealed shows that the NN claims were warrantless.

Context – The net neutrality debate is like internet policy comfort food. People know what to expect. People know their role. The politics are clear. There is money to be raised and earned. The next certainty is the legal challenges. When the Obama FCC enacted Net Neutrality rules in 2015, the telecommunications industry challenges were rejected in federal court. When the Trump FCC overturned the Obama era rules, the legal challenges of the progressive NN advocates were also rejected. If there is an interesting new angle on the old debate, it may come in the form of 5G services and whether “network slicing” allows for digital services that are not the internet, or would be an exception that can swallow the rule, so to speak. The FCC did not resolve that question.

Fast-Fashion Shein Added to VLOP List for EU Digital Services Act

Report from AP News

In Brief – Shein, a rapidly-growing Singapore-based online shopping platform, has been formally designated as a Very Large Online Platform (VLOP) by the European Commission and will face the highest level of scrutiny under the Digital Services Act (DSA). Shein has quickly grown from being a low-price, slow delivery, “fast-fashion’ retailer into a hybrid retailer-marketplace platform for mostly China-based sellers. The DSA regulates how digital platforms deal with illegal and objectional third-party content. Platforms with more than 45 million monthly active EU users are VLOPs. They face a more stringent regulatory regime, including oversite directly by the European Commission, stricter criteria for dealing with objectionable material, and the submission of regular risk assessments. The European Commission initially designated 19 digital platforms, including two search engines, to be VLOPs, and added three popular online pornography sites to the roster in December. In its announcement of Shein’s VLOP status, the Commission noted the DSA’s obligations around illegal, unsafe, and counterfeit products available on the site. The company will now have four months to submit a risk assessment report to the regulator that includes its mitigation measures to address problematic content.

Context – Shein is the fourth online marketplace to be designated a VLOP, with AliExpress, Amazon, and Zalando included in the initial list. Although social media platforms were the focus of the DSA, targeting objectionable material like hate speech, child sexual abuse material, disinformation, and advocacy for terrorism and a wide range self-harm, third-party commercial platforms were always part of the regime. European rights owners, especially in the so-called luxury goods industries, have always been aggressively skeptical of online marketplaces, charging them with facilitating rampant violations of intellectual property rights. Although the first two VLOPs facing formal DSA investigations were X and TikTok, AliExpress was the third, reinforcing the Commission’s commitment to policing online commerce as well.

FTC Accuses Amazon of Improperly Deleting Executive Messages

Report from the Washington Post

In Brief – The Federal Trade Commission has accused top Amazon executives, including former CEO Jeff Bezos, of improperly using Signal's automatic message deletion feature to destroy communications potentially relevant to the agency’s antitrust investigation of the ecommerce and logistics giant. The FTC claims that Bezos initiated the use of Signal, which is widely regarded for its end-to-end encryption and security, by top Amazon executives in 2019 following his phone messages being hacked. In June of 2019 the FTC formally notified Amazon that it was being investigated for unfair competition practices and told them to preserve company documents, including executive communications. The FTC says that it was not notified by Amazon about the company’s use of Signal until March 2022, just days before a Wall Street Journal article exposed the practice, and that Bezos was not informed of the obligation to retain messages until April 2020. They also claim that some executives used Signal’s disappearing message feature even after that. An Amazon spokesman said that the agency’s claims are “baseless”, and that the company “thoroughly collected Signal conversations from its employees’ phones” and shared them with the agency.

Context – There’s little doubt that the FTC is hoping to capitalize on the apparent good fortune that Epic Games gained at Google’s expense in their antitrust trial last year when Google’s policy of deleting intracompany executive messages was roundly criticized by the federal judge overseeing the case. Epic Games brought similar antitrust complaints against Apple and Google accusing them of anticompetitive conduct in their app store operations. While Apple, with its very restrictive walled-garden practices, prevailed on the federal antitrust claims, Google lost. Many expert observers pointed to the message deleting bruhaha as well the fact that Google faced a jury trial while Apple had a bench trial. The FTC’s massive antitrust complaint against Amazon is currently scheduled for a bench trial in October 2026.