|FROM ||Ruben Safir
|SUBJECT ||Subject: [NYLXS - HANGOUT] Fraud Alerts
November 27, 2013
Mr. Kent Walker
Senior Vice President and General Counsel
Via E-mail: xxxxxxx-at-google.com
Dear Mr. Walker: Dear ____:
Pursuant to our telephone conversation on Wednesday, November 20, 2013,
I am sending you this letter, which I previously sent you in draft form
on November 18, 2013. This letter also responds to the June 26, 2013
letter sent by Ms. Jamie Gorelick of the law firm WilmerHale on behalf
of Google ("Google's Letter"). I respectfully request that you answer it
in writing before our December 2, 2013, National Association of
Attorneys General meeting.
Based on our lengthy discussion, it is my understanding that you will
neither come nor send someone with any authority to meet with some of
the concerned Attorneys General during our meeting in New Orleans next
week to address any of the problems that we have raised with Google. If
I am wrong in my assessment of our conversation, please advise me in
writing. I will advise my colleagues at the meeting next week of our
conversation and I do not want to mischaracterize it.
It is evident from Google's this letter , and my discussion with you,
that although Google claims to be interested in cooperating with state
Attorneys General, it is unwilling to take basic actions to make the
Internet safe from unlawful and predatory conduct, and it has refused to
modify its own behavior that facilitates and profits from unlawful
In my ten years as Attorney General, I have dealt with a lot of large
corporate wrongdoers. I must say that yours is the first I have
encountered to have no corporate conscience for the safety of its
customers, the viability of its fellow corporations or the negative
economic impact on the nation which has allowed your company to
As you are aware, overwhelming evidence shows that Google facilitates
and profits from numerous illegal online activities ranging from piracy
to illegal drug sales and human trafficking. Yet Google has repeatedly
refused to take reasonable but important steps that would reduce the
ability of criminals to profit from their crimes. Google’s inaction
is not merely a failure to do the right thing. Rather, it raises serious
questions as to whether Google is engaged in unlawful conduct itself.
Nowhere was this made more apparent than in Google’s own admissions
to the United States Department of Justice when it was compelled to
forfeit $500 million in profits due to its facilitation of the sale of
unlawful drugs. By its own admission, Google was aware of and actively
aided and abetted the unlawful sales of pharmaceuticals through its
search engine and its advertising service. Notwithstanding Google’s
claims that it merely provides a passive or neutral conduit for the
speech of others, or the legal doctrines discussed in Google’s
Letter, Google nonetheless was liable for its own conduct, its own
knowledge, and its own refusal to act in the face of indisputably
There is every reason to believe further investigation will reveal that
Google’s illegal conduct reaches far beyond the illegal
pharmaceutical sales that it has already admitted to facilitating.
Publicly available information, described in greater detail below,
already illustrates that Google profits from a host other types of
criminal conduct as well. This includes but iswell including, but not
limited to, further illegal pharmaceutical sales, counterfeiting,
copyright infringement, and sex trafficking.
To combat these facts, Google takes two contradictory positions. Google
touts its technology, especially in search – its ability to take
information (including personal information about its users that raise
privacy concerns not discussed in detail here) and use that information
to provide “better” search results customized for individual
users. With that technology and the army of Google employees who program
and operate it, Google can respond to customers’ needs. It also can,
as Google’s letter explains, take actions – when Google wants
– against unlawful or offensive conduct by, among other things,
deleting search results, removing advertising, and changing its
At the same time, Google would have us believe that it is a passive
search engine incapable of combating the unlawful conduct it
facilitates. That is the core of both the legal and the factual argument
in Google’s Letter. Google’s admissions, however,But
Google’s admissions to the United States in its $500 million
forfeiture, the admissions in its letter, and Google’s own public
proclamations belie such claims. Google can and does take action against
unlawful or offensive conduct – when Google determines it is in its
business interests to do so. GoogleBut it has chosen not to cease
facilitating unlawful conduct when doing so would decrease its profits.
Moreover, Google appears to gather the information it receives from
separate Google products and services for purposes of enhancing its
other products and services and more effectively marketing to consumers
across all Google platforms. Google should apply that same philosophy to
implement policies across all platforms to reduce unlawful content. For
example, if Google has knowledge that a site is problematic from a
Google AdSense perspective and takes action based on that, Google should
share that knowledge and take the same type of action with respect to
other Google products and services that may be used by or in connection
with that site.
As is described in greater detail below, Google can take action and
does, when it so chooses. But with respect to a host of types of
unlawful conduct of concern to state Attorneys General, Google simply
refuses, relying on its own claimed (and false) passivity, or the First
Amendment, or the technical challenges that it concedes it has overcome.
To maintain its status as a legitimate business and avoid further
liability, Google must finally take the actions it can to cease
promoting and profiting from unlawful conduct. And it must be called to
account, after a full investigation and fair hearing, for actions that
are its and its alone.
II. Google Facilitates And Profits From Unlawful Activities.
Google does not seriously dispute that rampant unlawful conduct is
assisted and made easier by Google’s search results and other
conduct. Moreover, state Attorneys General, pharmaceutical companies,
motion picture studios, and others have all notified Google of specific
websites engaged in obviously unlawful conduct. In general, Google takes
little or no action to curb the unlawful conduct, ostensibly based on
the arguments made in its letter
Google is unquestionably the dominant search engine on the Internet.
Those who engage in unlawful activity rely heavily on Google, with
Google search results being a primary, if not the primary, way that they
obtain traffic to their websites. If a website selling or providing
unlawful products ceased to appear at the top of Google’s search
results, chosen by Google’s algorithm and its employees, it would
dramatically reduce the ability of that website to violate the law and
There is no serious dispute that Google has the capability to take such
actions. As is detailed in Google’s Letter, Google removes content
from its search results in a variety of circumstances: Nazi-related
content is removed from search results in Germany; allegedly defamatory
content is removed in the United Kingdom; insults to religion are
removed in India. Google removes child pornography from its search
results. It also blocks sites with spam and malware that can be damaging
to users. Letter at 2. It takes these actions without waiting for a
court order or court adjudication that particular content is unlawful.
This is the right thing to do. Google’s successes in screening child
pornography, malware, and illegal content in foreign countries
demonstrate that it can curb unlawful conduct, when it so desires.
Yet while Google is willing to tailor its search results to comply with
the law in foreign countries, it has been unwilling to delist and demote
sites that violate a variety of domestic laws. In the United States,
websites with illegal content not only appear in Google’s search
results, but are regularly among the top-listed search results. For
example, despite the publicity surrounding Google’s facilitation of
illegal and counterfeit pharmaceutical sales, when a user searches for
“buy oxycodone,” the top search result on Google is a site
titled “Order Oxycodone Online No Prescription.” Google’s
search results also facilitate piracy, forgery of identification
documents, sales of counterfeit goods, cigarette sales to minors, and
This is both troubling and inexcusable. In light of Google’s
successes in screening other types of criminal content, Google cannot
claim that it lacks the ability to respond to requests for assistance in
fighting crime. Given the obviously unlawful activities on many of
these sites, once Google is notified that a site is engaged in unlawful
conduct by a state Attorney General, federal law enforcement or the
owner of intellectual or other property, it cannot credibly claim that
it lacks knowledge. Instead, it has decided to pick and choose what
unlawful conduct to combat – based on its own profit motive.
Such an approach must change. One would expect that Google would be
eager to act as a responsible corporate citizen and to cooperate with
law enforcement to ensure that its search results do not facilitate
criminal conduct. Google’s Letter claims that its “commitment to
a safer internet is manifest.” Letter at 3. But this claim rings
hollow in light of Google’s inaction toward the proliferation of
illegal content in its search results. It appears that Google has made a
calculated business decision that it will be most profitable to continue
to promote websites with unlawful content and to profit from the
advertising that accompanies those searches.
Google should take the following actions to deal with rogue sites and
discontinue the promotion of unlawful content:
• Further promote authorized sites. Google should take into
account information from authoritative sources on which sites have been
authorized to provide content, and promote those sites in rankings for
searches for that content.
• Provide an icon or other indication with search results to
authorized sites. Google should show an icon or other visible mark next
to search results that are to known authorized sites for searches for
content available on those authorized sites.
• De-index rogue sites. Google should not index sites that are
“rogue sites,” that is, sites substantially dedicated to
intellectual property infringement. Google should de-index a site that
is established to be a rogue site by referrals from trusted rights
holders, or by third party services that provide meaningful criteria for
assessing the level of IP infringement on websites.
• Proactively refuse to index repeat infringements of content on
a site. Google should revise its policies on indexing new pages on a
site to content for which Google has received multiple notices of
infringement on that site.
• Further deprioritize rogue sites. Google should make more
changes to its algorithm to push rogue sites dramatically lower in the
results and to ensure that new infringing sites do not take their place.
• Provide a “red light” or educational warning about
rogue sites. Google should warn users before it permits them to link
from Google to rogue sites.
Google’s Autocomplete function, which offers real-time search term
suggestions to users, only exacerbates the problems created in Google
search by steering users to search for websites that engage in and
promote illegal activities.
Although Google’s Letter claims that Autocomplete is “analogous
to automatic spell checkers” used in email programs, Letter at 3,
this misrepresents the feature. Spell checking corrects objective errors
that the user may have made when typing. In contrast, Autocomplete
affirmatively suggests search terms to users. In essence, Autocomplete
directs users to use specific terms. And Autocomplete is utterly and
completely in Google’s control.
While Google trumpets Autocomplete as a way to make searching faster, it
also makes it far easier for users to search for and find websites that
facilitate illegal activity. As recently as a few months ago,
Autocomplete suggested searches for sites selling prescription drugs
without prescriptions. But Autocomplete goes much further, suggesting
searches like “buy stolen credit card numbers,” “how to make
a fake id,” and “buy bath salts drug.” Autocomplete
provides a road map for users to find illegal content online.
Google attempts to escape responsibility for its Autocomplete
suggestions by representing, “Autocomplete entries simply reflect
what an algorithm predicts is the likely search query . . . .”
Letter at 12. But Google ignores that it, not a third-party, authors the
algorithm producing these suggestions. And althoughAlthough Autocomplete
may draw from the massive data Google gathers through users’ search
queries, none of the suggestions are produced by anything but
Google’s algorithm. No entity other than Google could be the creator
or the speaker of this content.
OnceAnd, once again, it is clear that Google can control Autocomplete to
combat unlawful activity, but, in most circumstances, chooses not to.
Today, Google actively polices Autocomplete’s output and regularly
censors that output to avoid, for example, avoid suggestions that would
lead to vulgar and obscene websites. It will refuse to suggest key terms
associated with child pornography. All of this is commendable. Parents
should not have to worry that their children will stumble upon
inappropriate content based on suggestions offered Google. But
Google’s active tailoring of its Autocomplete suggestions only
proves that Google, not a third party, creates and controls that content
and thus promotes the searches and websites that engage in unlawful
YouTube’s role in unlawful conduct is well-established. For example,
a 2013 report by the Digital Citizens Alliance detailed how YouTube has
become the how-to site for criminal behavior. Videos uploaded to
YouTube serve as commercials for businesses peddling prescription drugs
from rogue pharmacies, forged identification documents, and counterfeit
goods, as well as instructionaland as instruction videos for finding
prostitutes, pirated copyrighted material, and illegal drugs.
But YouTube is not a mere platform for these videos. Many Rather, many
of these videos are monetized to allow Google and the producer of the
content to profit from the videos. When a user uploads a video to
YouTube, he or she has the option to check a box to “monetize my
video,” and to select the advertising formats that can accompany the
video. When a YouTube video is monetized, advertisements accompany
the video. Google and the video’s producer share the revenues from
these advertisements. When videos with illegal content are monetized,
Google not only profits directly from that illegality; illegality.
Worse, it allows the criminals themselves to profit.
This financial partnership between Google and those who post criminal
content is deeply troubling. It is also entirely avoidable. Google
claims to conduct a “standard review process” before videos on
YouTube are allowed to be accompanied by advertisements. Such a
review process certainly provides the opportunity to screen for videos
that promote criminal activities. Nevertheless, these videos
proliferate. What purpose does this screening process serve, if it fails
to ensure that the monetized content complies with the law and
YouTube’s terms of service?
Google also has the ability to find these illegal videos. Google’s
Letter asserts that YouTube has “created and implemented automated
solutions to attempt to both remove spam videos placed by potential
rogue pharmacies and to disable ads from running against videos
containing metadata suggesting they might contain objectionable
pharma-related content.” Letter at 5. The letter also candidly
admits that after Google “learned” from news reports that videos
promoting rogue pharmacies and counterfeit drugs were rampant on
YouTube, it “immediately removed” thousands of videos that it
found to be in violation of its guidelines. Id. This only demonstrates
that Google can quickly and effectively remove videos promoting criminal
activities when it chooses to do so. There is no reason why Google
cannot take similar steps to address the proliferation of other criminal
content on YouTube. Google should ensure that YouTube doesn’t become
the go-to source for download links to popular, copyrighted content. To
that end, it should remove such content from the videos and/or
de-prioritize videos that contain links to known rogue sites for
Through its AdWords program, Google provides advertising and allows
business – including illegitimate businesses – to promote their
products and gain an advantage over other (legitimate) competitors. Even
Google concedes that its legal obligations regarding the content of
advertisements are heightened because they are entering into a business
relationship, in many cases, with (in many cases) an obviously unlawful
website. See Letter at 3.
As in each of the other areas discussed above, Google concedes that it
can take action to cease advertising on behalf of unlawful websites.
Google’s Letter detailed various actions Google has taken to limit
rogue pharmacies from advertising through its AdWords program. It is
notable, however, that Google has only taken these steps under the
compulsion of a Non-Prosecution Agreement with the Department of
With respect to a host of other types of unlawful sites, including
counterfeit goods, piracy, and illegal drug sites, Google continues to
do nothing. Just as the owner of a billboard would not post an
advertisement informing passersby of where to buy stolen cars,
Google’s AdWords program should never offer advertisements for
criminal enterprises. Google must stop providing criminals with the
means to target their customers and victims.
III. Google Cannot Escape Liability For Its Facilitation of Unlawful
The legal arguments of Google’s Letter fail for the same basic
reason that Google’s factual arguments are unpersuasive – Google
is not a mere passive company that just happens upon unlawful conduct,
and it is not being investigated or pursued for the conduct of others.
It is Google’s own conduct that renders it liable, its liable and it
is Google’s conduct which must change.
Firstly First, Google’s Letter argues that Google can never be
liable for its support of unlawful enterprises. It claims that it could
not be convicted of aiding and abetting a crime, no matter how blatant
the criminal enterprise of its business partners may be. This is simply
wrong. Google’s conduct has greatly exceed that of a legitimate
business “provid[ing] lawful services . . . even when it is
foreseeable that some small portion of users may abuse those services to
promote illegal ventures.” Letter at 9. It is not merely
“foreseeable” that some of Google’s advertising and YouTube
partners are promoting illegal activities. To the contrary, the illegal
ventures that Google facilitates are open and transparent with their
Even the case law cited by Google proves why Google’s actions go
beyond those of a legitimate business engaging in arms-length
transactions. In Direct Sales Co. v. United States, 319 U.S. 703 (1943),
the Supreme Court made clear that the type of transaction matters a
great deal when determining whether a business can be liable for the
criminal activities of its customer. The Court explained that some
articles of commerce “from their very nature . . . giv[e] the
seller notice the buyer will use them unlawfully.” Id. at 710. Such
is the case here. When YouTube agrees to monetize a video entitled
“Fake Passport USA step by step,” YouTube is clearly on
notice of the illegal content of the video. YouTube’s knowledge of
this illegality, combined with its decision to monetize the video and
share profits with its producer, proves its intent to “further,
promote and cooperate” in the illegal conduct. See id. at 711.
Similarly, when Google promotes, through its search results, websites
obviously selling unlawful drugs or streaming pirated videos, Google
cannot escape liability. Once Google it is aware of that conduct, or, in
some cases, enters in a contractual relationship to promote the illegal
content of the poster or advertiser, it assists criminal actors in
advertising their criminal services.
We recognize that the question of Google’s knowledge is key. But
Google’s own admissions in the $500 million forfeiture demonstrate
that Google was well aware that it was promoting unlawful conduct, took
no action to stop it and, indeed, took steps to affirmatively assist the
unlawful conduct – all the while earning a healthy profit. This
conduct – classic aiding-and-abetting – is, we believe, likely
to be replicated with respect to other forms of illegal conduct like
human trafficking and product piracy. These are areas of great concern
to state Attorneys General and not only relate to violations of law but
also to public health and safety.
Secondly Second, Google asserts that it effectively has blanket immunity
under Section 230 of the Communications Decency Act of 1996, 47 U.S.C.
§ 230(c),(e). Again, however, Google overstates the protections the CDA
It is undoubtedly true that courts have interpreted Section 230 to
protect service providers, including Google. See, e.g., Zeran v. America
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). Computer service
providers like Google are protected from certain forms of liability
where they publish information provided by another information content
provider, see id.; 47 U.S.C. § 230(c)(1). The But the courts have also
been clear that this immunity is not unlimited. The CDA “was not
meant to create a lawless no-man’s-land on the Internet.” Fair
Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1164 (9th Cir. 2008) (en banc). The And the CDA does not shield
Google from its conduct.
Section 230(c) of the CDA provides no immunity to an internet service
provider like Google when it, rather than a third party, is the
“information content provider.” See id. at 1162; FTC v.
Accusearch Inc., 570 F.3d 1187, 1197-1200 (10th Cir. 2009). That is, if
the service provider is “responsible, in whole or in part, for the
creation or development of” the offending content, 47 U.S.C. §
230(f)(3), its actions fall outside the protection of Section 230. As a
result, courts have held that a service provider is not immune from suit
where the provider itself creates or helps to develop, rather than
merely publishes, the unlawful content. See, e.g., Roommates.com, 521
F.3d at 1168-69; Accusearch, 570 F.3d at 1198-99; Anthony v. Yahoo!
Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006). Where a search
engine is “much more than a passive transmitter of information
provided by others,” and instead “becomes the developer, at
least in part, of that information,” Section 230 offers no
protection. Roommates.com, 531 F.3d at 1166.
For this reason, the CDA provides Google no immunity for its
wrongdoing. Google is not a mere publisher of third-party content
when it suggests search terms through Autocomplete. Google authors the
algorithm that generates the suggestions, and Google alters those
suggestions based on the identity of the user and to ensure that the
user is not directed to offensive content. Thus, Google is the developer
of the content generated by Autocomplete. When Autocomplete steers users
towards illegal content and websites, Google is responsible and outside
Section 230’s protections. See Roommates.com, 521 F.3d at 1167.
Similarly, where Google’s AdWords program assists criminals in
optimizing their advertising campaigns, as Google conceded it did for
illegal pharmacies in the NPA, it is an information content provider
excluded from the protections of the CDA. Such advertising campaigns are
not solely attributable to a third party because Google has itself
created or developed, “in whole or in part,” 47 U.S.C. §
230(f)(3), the unlawful advertising campaign.
Moreover, Google enjoys no protection under the CDA where it itself
engages in conduct that is unlawful – regardless of who is the
“publisher” of content. On YouTube, Google enters into contracts
with the producers of YouTube videos to monetize illegal content and
fund criminal activity. Google becomes a business partner, sharing
advertising profits with criminals. Such aiding and abetting of criminal
activity falls outside the immunities of Section 230 of the CDA. Courts
have been quite clear that the CDA offers no protection to service
providers that have themselves engaged in unlawful practices. See, e.g.,
Anthony, 421 F. Supp. 2d at 1263 (The CDA “does not absolve Yahoo!
from liability for any accompanying misrepresentations” Yahoo!
itself made); Mazur v. eBay, Inc., 2008 U.S. Dist. LEXIS 16561, at *28
(N.D. Cal. Mar. 4, 2008) (“The CDA does not immunize eBay for its
own fraudulent misconduct.”); 800-JR Cigar, Inc. v. Goto.com, Inc.,
437 F. Supp. 2d 273, 295 (D.N.J. 2006) (holding that the CDA cannot
“shield entities from claims of fraud and abuse arising from their
own pay-for-priority advertising business, rather than from the actions
of third parties”).
At its core, Google’s arguments under Section 230(c) are that it
bears no responsibility for any criminal activity occurring on any of
Google’s various platforms – regardless of the role Google has
taken in creating, developing, encouraging, and profiting from that
conduct. This But this is not about holding Google liable for merely
being a conduit for the speech and actions of others. It is about
holding Google to account for its own knowledge and actions – its
facilitation of and profit from unlawful conduct, its own choices and
actions in building its search and other algorithms, its promotion of
particular unlawful websites through the Autocomplete feature that it
created and wholly controls, and its business partnership with the
producers of YouTube videos engaged in unlawful conduct. No entity –
not even Google – is above the law.
cc: Jamie Gorelick
The Honorable Jon Bruning
The Honorable David Louie
The Honorable Eric Holder
 The search for “buy oxycodone” was conducted on August 29,
 This is not about the free flow of expression protected by the First
Amendment or about the challenge of previewing the trillions of web
pages in the world. Those are strawpersons set up by Google’s
Letter. Rather, this is about what Google knows, what it does, and what
it refuses to do (even though Google concedes that it can).
 Press Release, Attorney General Asks Colleagues to Issue Subpoenas
in Google Investigation (June 18, 2013),
 These searches were conducted on August 29, 2013.
 See Digital Citizens Alliance, Google & YouTube and Evil Doers: Too
Close for Comfort (June 2013),
 See id.
 See Non-Prosecution Agreement between Google, Inc. and the U.S.
Attorney’s Office for the District of Rhode Island (Aug. 2011),
 This was one of the monetized videos specifically discussed in the
Digital Citizens Alliance report. See Digital Citizens Alliance, supra
 The CDA also offers no immunity for Google’s violations of
federal criminal law, see 47 U.S.C. § 230(e)(1). It therefore cannot
shield Google from liability for its facilitation of forgery of
identification, counterfeiting, illegal drug sales, piracy, human
trafficking, and other federal crimes.