More People Waking Up To The Troubling Implications Of The Gov't Taking $500 Million From Google

from the secondary-liability dept

Last week when it was confirmed that, via a “nonprosecution agreement,” the government would forfeit $500 million from Google, because of some Canadian pharmacies, we were worried about the kind of message this sent to the tech community. While there are no specific safe harbors on secondary liability for criminal activity, the US judicial system generally does recognize the fact it’s wrong to blame third parties for actions they were not specifically responsible for. There are, of course, some safe harbor rules (mainly 512 in the DMCA and 230 in the CDA) which clearly protect third parties from liability in specific instances, but even outside of those safe harbors, the courts have recognized how wrong it is to blame third parties for the actions of others, even if they occur on that third party’s platform (for example: in the Tiffany/eBay case, where there are no safe harbors for trademark infringement, but eBay was still deemed not responsible).

What there is in criminal law is the “aiding and abetting” concept, which is what the government apparently was focusing on here. However, the bar to reach that is pretty high. Either way, others are beginning to recognize the chilling effect this effort by the Justice Department is going to have on the tech community. It notes that the government now seems to think it’s fair game to go after platform providers for aiding and abetting, even when the platform provider is just a tool being used. That’s pretty scary.

In fact, the article even suggests that the only reason the government agreed to the “settlement” route here — in which it only got the revenue back from Google, but no additional punitive award — was because it knew that the “aiding and abetting” claim was weak and might have trouble standing up in court. But, now, with this agreement in hand, the Justice Department can effectively shake down lots of other companies, with a “see what happened to Google?” message. That’s the sort of thing that’s likely to make many companies “agree to settle” and basically “forfeit” huge chunks of cash to the US government, rather than fight.

Whether or not you believe that people should be able to access Canadian pharmaceuticals is a reasonable point of debate. But I think it should be a pretty big concern to everyone that the federal government appears to be stretching secondary liability concepts drastically in going after Google here.

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Comments on “More People Waking Up To The Troubling Implications Of The Gov't Taking $500 Million From Google”

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70 Comments
Killer_Tofu (profile) says:

Re: Re: Ugh, great

I realize your post was meant in humor but I really do wish they would balance the budget. I just want them to balance it by stopping all the favors they hand out to their friends, to cut their own salaries and pensions, etc. All of various means that Americans would find reasonable. Instead we just see cuts to useful programs and more two party system bickering and finger pointing. It is atrocious.

Aerilus says:

Re: Ugh, great

they are just trolling because google is using tax tricks to avoid paying billion to the government they probably don’t want to rock the boat with current sentiments toward closing tax loopholes which someone in government probably realized hence forth the 500million pay off

https://www.npr.org/blogs/money/2010/10/21/130727655/google-s-tax-tricks-double-irish-and-dutch-sandwich

not to say other don’t do this too

Anonymous Coward says:

Actually, the “aiding and abetting” was more of a slam dunk that anyone would like to admit. The issue is that Google took proactive steps to block out pill scammers from almost every other country, but specifically allowed companies from Canada to advertise. They made a choice, and the choice turned out to be wrong.

The settlement route is good for both parties, it gets the feds a “point to it” closed case to use in the future, and at the same time it frees Google from any further liablity. Considering that Google gave up about 1/70th of their cash / cash equivalents on hand, and didn’t have to do anything else. Seems like a win all around.

I will say however that any settlement is always fodder for the conspiracy nuts to chew on.

Anonymous Coward says:

Re: Re: Re: Re:

What does ‘legally market and sell in the US’ have to do with pill scamming? Pill scammers do exactly that, they scam people by selling them fake or substandard pills. Who is getting scammed when a Canadian pharmacy sells genuine pills to a consumer in America? No one. Canadian pharmacies may have been acting illegally in selling controlled substances but that doesn’t automatically make them scammers.

Anonymous Coward says:

Re: Re:

“The issue is that Google took proactive steps to block out pill scammers from almost every other country, but specifically allowed companies from Canada to advertise. They made a choice, and the choice turned out to be wrong.”

I find it rather suspicious that this particular piece of information was not included in the TechDirt article. Why is that?

Ted Wise (user link) says:

Horse crap

If you actually read what Google did, it’s not a case of Google being shocked and surprised by a submarine case from the US government. It’s also not a case of requiring Google to moderate third-party postings.

Google took money to place advertisements for what it knew to be an illegal business. They even went so far as to assist the pharmaceutical companies in bypassing restrictions.

The fact that most people (myself included), find it ridiculous that Canadian pharmacies can’t sell to the US, is beside the point. It _is_ illegal and they knew it and they still took the money.

btrussell (profile) says:

Re: Horse crap

So if I stand in my front yard with a sign stating “Crack house, XXX st.” pointing towards said house, what am I guilty of?

Aiding and abetting?

Criminal investigation without proper permit?

Doing the police dept. job?

I mean, I am showing everyone, not just those looking for crack to consume, but also those looking to make a bust.

bob (profile) says:

You can't have your cake and eat it too

Google loves to brag about replacing editors, stores, and entire classes of people. That’s their justification for all of their profits. But taking that work also means shouldering that responsibility.

If a physical store was secretly sneaking in Canadian drugs at cut rate prices, the pharmacist would be put in jail. If a magazine was running ads or offering blow in cards with order forms, the publisher would be sent to jail.

Imagine if there was a pharmacist or a doctor or just a friend who was telling people how to order drugs from overseas. That person would be aiding and abetting law breaking. Why is it any different if a server does it? Why isn’t the programmer guilty of whatever instructions are given to the server?

If this guy went to jail over helping people bring in drugs, why shouldn’t the programmers and managers at Google? Oh wait. They’re rich. They can buy their way out of jail with $500m.

http://www.nytimes.com/2003/05/11/nyregion/li-work-bringing-medicine-from-canada-to-long-island.html

Google wants to take all of the profit from taking someone else’s job. Okay. But if you take the job, you take on the responsibility too.

Sean T Henry (profile) says:

Re: You can't have your cake and eat it too

“Imagine if there was a pharmacist or a doctor or just a friend who was telling people how to order drugs from overseas. That person would be aiding and abetting law breaking. Why is it any different if a server does it? Why isn’t the programmer guilty of whatever instructions are given to the server?”

Lets take this a little further.
Why isn’t the end users ISP guilty?
Why isn’t the DNS guilty?
Why isn’t the backbone guilty?
Why isn’t the pharmacy guilty?
Why isn’t the delivery service guilty?
Why isn’t the ordering person guilty?
Why isn’t the service that changed the US currency to Canadian guilty?

bob (profile) says:

Re: Re: You can't have your cake and eat it too

We’ve gone through this over the years. No. The roads, the traffic lights, and the double yellow lines aren’t guilty if they help a hitman drive to a job. But the person who runs the hitman directory and accepts advertising for hitmen would be guilty.

There may be cases when “aiding and abetting” is tricky for the jury to understand, but in many cases it’s pretty obvious.

BTW, it’s hilarious to listen to nerds try to come up with loony sophistries because they’re only capable of seeing the world as some object-oriented hierarchy where everything is logically consistent. Humans have been living with conflicts in the logical structure for years. While these conflicts provide many chances for arguments and debates, humans end up solving them.

Juries are capable of convicting the boss who tells the henchmen what to do. No one sane thinks this is a 1st amendment issue. No one sane talks about whether it will have a “chilling effect” on mobsters if they’re convicted for telling henchmen what to do. Yet astroturfers for Big Search continue to believe that Big Search can say whatever it wants without bearing any responsibility for it.

bob (profile) says:

Re: Re: You can't have your cake and eat it too

BTW, the Feds have cracked down on payment processors who’ve aided and abetted online gambling and pharmacies. And they have strict regulations for the delivery services. They’ve certainly gone after pharmacies when they can.

But we’re talking about Google. Why isn’t Google guilty for doing what would put a human in jail?

JMT says:

Re: You can't have your cake and eat it too

“Google wants to take all of the profit from taking someone else’s job. Okay. But if you take the job, you take on the responsibility too.”

You do remember that the the “someone else” you’re referring to, whose jobs were not likely taken at all, is the US pharma industry, one of the most immoral, corrupt, self-serving groups of people on the planet. Legality aside, it’s very hard to be sympathetic about their alleged losses.

Kevin (profile) says:

Alternate Title

US Government Invents New Kind of Legal Trolling: More Shakedowns Expected in Near Future

Of course, as usual, this comports with our Sacred Values — presumption of guilt (guilty until proven innocent), due process (if you’re making a lot of money, you’re due to be processed through some expensive trial), the First Amendment freedom of expressing views the government likes, and all that.

RD says:

Re: umm

“Do I get to hold the USPS responsible for delivering me canadian pharmaceutical advertisements, or can only the government do that? because i get them about once a month.”

According to this ruling and bob the idiot poster above, YES, you do!

See, its no longer about the person actually selling the illegal drugs, its whoever TELLS you about it or takes ADS from them. Forget going after the ACTUAL drug company, now we go after the phone book and websites and any place that even talks ABOUT these drug dealers! Why, we should expect techdirt, usatoday, the times, cnn etc to be sued any minute now because they are RESPONSIBLE!!

Anonymous Coward says:

I have a third party to sue...

I bet the same people who accessed Canadian pharmaceuticals on line used a web browser. Maybe the government should sue MS, Mozilla, Opera, Apple and other browser makers for allowing this to happen. PHAW! But who allowed those browsers to be used? Time to sue MS, Apple and Linux for having an OS that allows those browsers to run on their platform! Let?s not forget the hardware that makes this all possible; HP, Dell, Acer: I?m looking at you. Why aren?t any of these companies doing anything to stop people from breaking the law?! It?s time someone held them responsible for my actions.

zombie Doc says:

Re: Re:

No Canada is not a developing country, it is just the US federal government’s way of protecting big Pharma here to insure their insanely high prices. Doesn’t matter that a drug the same drug in Canada is 50% less, the issue is the government especially those in Congress need to protect their buddies from any loss at any cost to everyone else. I bet you half of those congress jack offs get their little blue pills from Canada.

taoareyou (profile) says:

Re: Re: idk bout u

“That’s all the government cares about.”

It’s not the institution of our government, it’s the people we keep sending to operate it. How do we send the right people? Enough of the right people have to stand up and run for office.

Think about the Tea Party movement. It’s had an influence in government and it’s messages are mixed, with a lot of religious and current establishment baggage.

The Tea Party has however, shown us that a grass roots political movement can advance. The U.S. needs a strong Civil Libertarian political movement like the Tea Party people have.

I believe that the majority of our citizens ultimately believe in the rights of individuals and personal freedoms. Decades of systematic programming have made the masses believe they must accept the actions of the government representatives.

We just need to start electing leaders instead of politicians. 🙂

taoareyou (profile) says:

Re: Re: Re:2 idk bout u

The thing is, that top 20% may have half the wealth, but the rest of the population has 80% of the vote. Stop letting the 20% tell you how to vote. Don’t believe you have to vote Democrat or Republican. Vote for your interests. Vote for your fellow citizens’ needs. That being said, the first step is to educate people. The next step is to get alternatives to the status quo on the ballots.

Or you could make excuses as to why it can’t be done because some people are rich. Even the non-rich in America have access to the Internet. You don’t need riches to get the message out, you just need excited citizens to get their friends excited and educate each other.

While I will firmly speak out against our liberties being taken, we are putting those who take them into power. You may not have riches, but your one vote is equal to the richest person’s one vote.

Rekrul says:

A while back, my friend had a heart attack due to a blocked artery. At the time he had insurance, which covered the procedure to remove the blockage. However, he no longer has insurance. The pills he needs to take to help him stay alive are about $500 for a one-month supply. He can’t afford that, so he orders them from Canada.

It’s a choice of getting them “illegally” or possibly dying. All to protect the profits of the multi-billion dollar pharma companies.

out_of_the_blue says:

Clear case of commercial interest.

First, as a corporation. Google doesn’t deserve presumption of innocence.

2nd, it ran afoul of a large cartel.

3rd, it’s an insane law, but a well known one. — It’s usually RE-importing US mf’d drugs.

Sum: Google won’t do that again.

Cure: take the ridiculous profits out of drugs.

RichWa (profile) says:

Part of the Obama Secret Pharmaceutical Agreement?

I can’t help but wonder if this is not part of the secret agreement that Obama reached with big pharma when he first came into office. This is going to hurt a lot of people who can’t afford to buy their medications in the US and benefit only the people that own big pharma.

Here’s my reason and the same applies to other people I know:
Using Google to find a reputable Canadian pharmacy was the only way I could afford to get my prescription filled. Insurance refused to cover it as it was off-label use (never mind all the studies I provided them as to it’s efficacy, the fact my doctor prescribed it, and the fact it is working.) The one pill per day I am on would cost me $18 per pill about half my disability pay whereas the MSRP on the box I get from the Canadian pharmacy is $0.14 per pill (a markup of $17.86 above the generic list price.) And I must mention that the drug is off patent so it should be “inexpensive” but the company that makes the drug paid off the generic drug makers to not import the drug into the US.

Thank you Google for helping me get my needed medications at an affordable price.

RobShaver (profile) says:

So will they go after Ford or GM ...

So will they go after Ford or GM if their cars are “aiding and abetting” a bank robbery get-away? Shouldn’t Ford and GM keep tabs on the owners of their products? What’s this country coming to if you can just drive away from the scene of your crime? THIS MUST BE STOPPED! Let’s pass some laws here! Let’s punish the creators of technology for how their products are put to use.

Anonymous Coward says:

It once again looks like the government took the side of big pharma.

The being in calhoots with major corporations is biting us in the butt every time you turn around.

Obamacare that is supposed to address insurance for everyone is nothing but a money grab for insurance companies and big pharma. You can bet the cost won’t go down with every one being required to have insurance.

This is the same argument that was presented for state auto insurance. If everyone had insurance it would be cheaper. Instead after everyone had insurance, they claimed they were paying more because now they had to pay for all the accidents.

In the same terms, this business of shutting off cheaper drug supplies will cause higher deaths from the lack of being able to pay for it. Most all the medical bankruptcies are from people that already have medical insurance. The insurance companies aren’t paying it all, leaving the patient to have to pay it. Individuals can’t afford the cost of medical help.

Already there are drug shortages where EPA and FDA have closed some of the drug manufacturing plants for safety concerns. Since there aren’t that many to begin with, people are finding out their cancer drugs they depend on for life itself isn’t available at any cost.

Getting them from Canada is one solution and an economical one that big pharma is scared to death of. Big pharma is in for a reduction in profits as starting in April, some of the drugs depended on patent protection runs out. Drugs like Viagra will have a price drop on them because generics will then be made.

Typically this is why the cost of drugs have skyrocketed in the last few years. They are milking the price for all it is worth before losing that sole manufacturing right.

That’s a good thing.

Were the government really concerned about dealing with the price of Medicare, addressing medical liability costs would be one step in the right direction. Another would be ensuring that the patient god the same price breaks insured patents did. Everyone is looking for their fortune from your wallet. It’s high time to address those skyrocketing costs for medical service as they are going up much faster than inflation can account for.

tebee (profile) says:

Lets start calling a spade a spade

I think the problem is the words we use to describe what is happening here. Why don’t we stop saying that this quasi-judicial forfeiture is a “nonprosecution agreement” and call it a Government bribe to avoid prosecution.

Of course the problem is that then people might realize that the next step down this road is a shake-down not by the government itself, but by the government’s officials. Welcome to the world’s newest banana republic.

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