The Monopoly Report - Episode 49 (Part 1): Jon Leibowitz and the FTC's Role During the Early Google Era

Date: October 1, 2025
Host: Alan Chapell
Guest: Jon Leibowitz (former FTC Commissioner and Chair, 2004–2013)

Episode Overview

In this episode, Alan Chapell interviews Jon Leibowitz about his tenure at the Federal Trade Commission (FTC) during the formative years of digital privacy, ad tech, big tech mergers, and antitrust policy. The conversation covers the FTC's priorities between 2004 and 2013, key privacy and antitrust milestones, the challenges of implementing "Do Not Track," children's privacy, tech industry self-regulation, and the FTC's evolving approach to Google and its acquisitions. Leibowitz provides candid reflections on successes, regrets, and the limits of regulatory influence in a fast-changing digital landscape.

Key Discussion Points & Insights

1. Defining Achievements at the FTC (03:38–07:20)

• Bipartisan, utilitarian approach: Leibowitz describes the FTC as highly bipartisan during his term, focused on delivering the "greatest good for the greatest number."
• Major Successes:
  • Healthcare antitrust ("pay-for-delay" pharma settlements): Brands paying generics to stay out of the market; FTC efforts led to a significant Supreme Court win, benefitting consumers.

    "We won a case in the Supreme Court and that saved American consumers hundreds of millions of dollars over the past 12 years." (04:38, C)

  • Privacy: Push for consumer control over data, strengthening of the Children's Online Privacy Protection Act (COPPA), and high-profile cases against tech companies like Facebook for failing to honor privacy commitments.
  • Laying groundwork on tech antitrust: Initiated action against Intel, considered but did not proceed with a major case against Google regarding search preference due to insufficient commissioner votes.

2. The "Do Not Track" Initiative (08:08–11:37)

• Origins and Rationale: Motivated by the principle that "data belongs to consumers, not companies." (08:10, C)

• Implementation Hurdles:

  • Widespread agreement "in the abstract" on consumer choice, but industry resistance blocked consensus on definitions—especially, what constitutes "tracking."
  • W3C and browser makers participated but had vested interests in continued tracking.

• Political Support: Significant bipartisan congressional interest at the time, but voluntary industry alignment failed.

• Lasting Impact: While "Do Not Track" as a universal standard stalled, its ethos persists and informs ongoing privacy debates.

  "It was a great idea and one that 95% of American consumers and I would say 85% of elected officials should be supportive of and probably were." (11:15, C)

3. The Evolving Privacy Landscape – Cookies, GPC, and Enforcement (13:08–13:44)

• Cookies on the way out: Increasing pressure for universal opt-out mechanisms (e.g., Global Privacy Control).
• FTC’s focus: Ensuring genuine consumer choice remains an FTC priority, both historically and with the current commission.

4. Children’s Privacy: Strengthening COPPA & Beyond (13:44–19:34)

• Modernizing COPPA: Updated rules to close loopholes tech firms used to skirt parental consent requirements and redefine personal data (e.g., recognizing pseudonymous data as personal).

  "By 2012, smart companies had found ways to alight around COPPA's prohibitions of collecting data without parental consent." (14:25, C)

• Commission strategy: Ongoing engagement with industry and public interest groups; firm belief in prioritizing children's and teens' data protection.
• Recent developments:
  • FTC "6B" investigations: Probing AI companies on how chatbots interact with children and teens, especially after incidents involving AI-generated harmful advice.
  • Lessons from Facebook: Enforcement must include executive accountability, not just document review; learned from Cambridge Analytica fallout.

  "You have to talk to the people who run these companies, because sometimes they know what's going on, and they blithely ignored some warning signals." (18:42, C)

5. Age Authentication and Potential Pitfalls (21:25–24:34)

• Balancing Act: Need for age verification to protect kids versus risks of misusing granular data to target or discriminate against protected groups.

• Tech industry tactics: Some companies purposely avoid linking datasets to retain plausible deniability — thus evading stricter COPPA obligations.

• Future Directions: Noted that several states (e.g., California, Maryland) are stretching age-based protections to 16 or even 18, creating pressure for a federal standard.

  "If you can create incentives for these companies, even if they're regulatory or legislative, to actually, you know, make sure that they're not advertising to children in ways...that they shouldn't...that’s also a good thing." (23:14, C)

6. States Filling the Federal Void in Privacy (24:35–28:09)

• States step up: As federal privacy legislation lags, states increasingly enact their own standards—though often with weaker protections or industry carve-outs.

• Federal preemption debate: Federal law should set a strong floor to avoid conflicts and encourage more uniform protections.

• Constitutional implications: Excessively conflicting state laws could trigger dormant commerce clause challenges.

  "If you really had...data moves in interstate commerce...there is a particularly important role for the federal government in setting a standard..." (25:56, C)

7. The Industry Self-Regulation Era (28:09–37:00)

• Ad Industry Response: Initiatives like the Digital Advertising Alliance (DAA) "ad icon" for behavioral ads came directly in response to FTC urging.

  "That is entirely correct. We were pushing...My recollection of the DAA proposal...was that it required a very sophisticated consumer to...opt out of advertising." (30:01, C)

• Effectiveness: Leibowitz found the process too convoluted for most consumers, advocating for much simpler, meaningful controls.

• Apple vs. Ad Industry: Apple’s privacy prompts (e.g., on iOS) resulted in most consumers opting out of tracking—a strong illustration of consumer preference when clearly presented.

• FTC’s evolving stance: During Leibowitz’s tenure, the commission used the "bully pulpit" aggressively; in later years, under Chair Lina Khan, confidence in self-regulation waned, leading to a more assertive regulatory posture.

  "...some of the states went well beyond self regulation. And I think Lena comes from an approach where...she did use the bully pulpit...but...was just like, all right, well we're just...The self reg isn't working and we need to find something else." (35:26, C)

8. Google’s Acquisitions and Antitrust Awakening (37:00–42:22)

• FTC’s internal debate (DoubleClick etc.): Leibowitz admits, in retrospect, he wishes he’d voted to oppose the Google-DoubleClick merger.

  "If I had one vote, I wasn't sure at the time, but if I had one vote to take back, it would have been voting in favor of allowing Google to acquire DoubleClick." (37:35, C)

• Why didn’t the FTC block it?

  • Staff (even aggressive ones) didn’t see a clear antitrust problem.
  • Publishers and major media (even Rupert Murdoch) believed it would help their bottom lines—making a consumer harm prediction (necessary for antitrust enforcement) very hard.

• FTC investigations of Google:

  • Looked into self-preferencing and contracts restricting multi-homing.
  • Pursued (and won) an order to enforce Google’s FRAND commitments for licensing, but without commissioner majority, didn’t move forward on the biggest search-related antitrust case.

• Evolving consensus: In retrospect, Google’s monopoly has become far more "durable" than regulators could see at the time.

  "On the big search case it was a close call. Remember their monopoly was not as durable at the time as it is now 12 years later." (41:50, C)

Notable Quotes & Memorable Moments

• On bipartisanship:

  "We were then a very bipartisan commission, which doesn't mean we agreed on everything, but it meant that we talked pretty much every issue through before we came to a resolution." (03:57, C)

• On the failure of Do Not Track implementation:

  "At the end of the day, we couldn't get anybody to agree on what it meant to track. And that was sort of the end game." (09:41, B)

• On industry's approach to privacy:

  "Companies with a vested interest in tracking wanted to continue tracking. Okay, that's the world we live in." (10:10, C)

• On privacy's future:

  "If the federal government could bring itself to pass a strong, and I really mean strong, privacy law...there would be a role for some degree of preemption, I think." (26:56, C)

• On Google’s DoubleClick acquisition:

  "What I heard from publishers at the time was that no, no, no, this is going to be the greatest thing for newspapers...I think they absolutely believed it." (38:43, C)

Timestamps for Important Segments

• [03:38] Defining successes at the FTC
• [08:08] Do Not Track: vision and failures
• [13:08] Decline of cookies and new privacy controls
• [13:44] COPPA modernization and children’s privacy
• [18:42] Enforcing privacy against tech executives
• [21:25] The dangers and promise of age authentication
• [24:35] Fragmented privacy law: state vs. federal
• [28:09] Industry self-regulation and FTC's role
• [35:26] Shift from self-regulation to strong regulation
• [37:00] FTC’s decision-making on Google’s mergers
• [41:50] Google’s durable monopoly in hindsight

Conclusion & Preview

The episode encapsulates a pivotal era in US digital policy, where the intersection of data privacy, antitrust, and ad tech collided amid rapidly evolving technology and business models. Leibowitz offers both pride in the FTC’s achievements and remorse where vision outpaced political will or foresight. He highlights the complex forces—industry pressure, legal standards, and limited regulatory tools—that shape big tech oversight.

Preview for Part 2:
Next week’s episode promises a continuation, diving into the "first-party data exemption," the FTC’s examination of journalism in the digital age, and a deeper discussion of Google’s more recent antitrust battles.

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