'Safe harbour' court ruling could prevent US firms from reaching European users

When is a harbour not a safe harbour? Dominic Lipinski/PA

Is there any point in worrying about privacy, when in this hyper-connected age we spend so much of our time creating and sharing data with others? Either shared through social media or given to advertisers in exchange for the free services we use, it almost seems absurd to argue for strong data protection and privacy laws while we give so much away.

But notions of privacy and personal data protection are still crucial in a sharing environment. In Europe the rights to privacy (defined in Article 8 of the European Convention of Human Rights and Article 7 of the European Charter of Fundamental Rights) and to data protection (in Article 8 of the Charter) clearly apply online, offering protection against systematic surveillance of communications by public and private entities. However while Europeans particularly care about privacy, ultimately there is no global agreement. The giants of the internet, for example, are generally US companies operating within a legal system without a harmonised and comprehensive data protection regime.

The conflicting nature of European and US privacy legislation has been highlighted in a court case between one of these giant firms, Facebook, and Austrian privacy activist Max Schrems. Schrems brought his complaint to the Irish Data Protection Commissioner (Facebook’s European base is in Dublin) over the firm’s sharing of his personal data with US authorities.

The commissioner originally rejected the complaint and the case has now escalated to the Court of Justice of the European Union (CJEU). That court’s ruling could upset a 15-year-old balancing act between EU and US laws. If the court finds in Schrems' favour, this could have major implications in how most popular internet services – largely US firms – act in respect of their non-US users.

The Atlantic divide

The conflict stems from the EU’s comprehensive and relatively stringent data protection regime. In order for EU and US organisations to work together a set of standards needs to be agreed to ensure that European citizens' data receives the same protection when transferred to other countries as it would within the EU. Over the years, the European Commission has recognised various countries as providing adequate data protection – including the US in 2000, for which transfers of data between the US and EU fall under the Safe Harbour Framework.

But the safe harbour principles include exclusions for “national security, public interest, or law enforcement requirements” – exclusions not taken into account in assessing legal protections in the US. As revealed by files released by Edward Snowden, US laws such as the Foreign Intelligence Surveillance Act (FISA) have opened the door since 2000 to mass surveillance of non-US citizens and the collection and storing of their personal data. Considering the review procedure for FISA authorisations is entirely secret, this is worrying for anyone without the constitutional protections afforded to US citizens.

While differing treatment of US and non-US citizens had been raised by privacy experts even before Snowden’s leaks, they revealed the capabilities of the US National Security Agency to collect and analyse vast amounts of internet communications and online browsing histories. It also made clear the extent to which internet giants such as Facebook, Microsoft and Yahoo complied with US requests for data. Suddenly the European Commission’s claim that US law offers adequate data protection seemed unfounded.

Decisions made here could have far-reaching consequences. Niall Carson/PA

Facebook vs the people

In his case against the Irish data commissioner, Max Schrems attacks the commissioner’s refusal to investigate his claim. Schrems' argument is that Snowden’s revelations show there is no meaningful data protection in US law as it allows bulk collection and retention of non-US citizens' data even without a court order. The commissioner’s refusal could nonetheless be justified by the presence of the US on the European Commission’s list of approved adequate legal systems, however discredited that now seems.

In July last year, the Irish High Court referred the case to the CJEU, essentially to rule on whether a member state’s data protection agency such as the Irish Data Protection Commission is “absolutely bound” by the European Commission’s decision to declare the US a safe harbour for EU data.

The alternative would allow the commissioner to assess whether US law provides the protection expected by European citizens until the European Commission issues a new and valid decision. The CJEU has now heard arguments from both parties, with the advocate-general’s opinion expected in June.

Worldwide implications

The CJEU had already ruled in April 2014 that the European mass data retention scheme was invalid due to the absence of appropriate legal safeguards. Some expect the ruling will address the legality of the commission’s decision, although the question posed to the CJEU is not exactly framed in these terms.

So the CJEU’s ruling could affect the current safe harbour agreement between the US and EU, perhaps even raising the possibility it may be suspended. National data protection agencies may also be tempted to suspend data transfers to the US – something that could interrupt the reach of US-based online services to some member states. However, because the treatment of personal data for the purposes of national security falls outside the scope of EU law, the CJEU’s answer might not be that obvious.

Are we at an impasse? A recent study that compared international approaches to data protection has shown that the laws of many EU member states do not prohibit the bulk collection and retention of foreign data. But EU member states do not necessarily have the same capabilities as those of the US. If anything this tale reveals the need for minimum international standards as much as it demonstrates the legal complexities that arise from the lack of them.

We don't need digital detox, but there is a need to rethink our relationship with technology

'My name's Steve and I'm an internet addict' Alatele fr, CC BY-SA

We all know the scare stories. Growing numbers of people are becoming addicted to the internet and constantly checking their digital gadgets. They are steadily disconnecting us from real life, real relationships and real meaning. To this supposed problem of digital dependence, an antidote has been emerging: the “digital detox” retreat. Companies are advertising technology-free resorts, holiday packages, city breaks and summer camps.

One operator has even trademarked the concept. Digital Detox® LLC is a Californian travel company that’s motto is “disconnect to reconnect”. Its customers are offered a “restorative” break on a ranch in northern California including yoga, meditation, hiking, art and organic food, with no digital devices allowed. At a destination named Camp Grounded, campers are promised a chance to get back to childhood – “with campfire songs instead of YouTube videos, and board games instead of Angry Birds”.

And if you were thinking this was only in America, you would be wrong. The Westin in Dublin offers a digital detox minibreak to “give you the chance to escape from all that electronic chatter”. Liberate yourself, the website reads, from your smartphone, laptop and gadgets and replace all that digital clutter with relaxation and renewal.

Digital Detox, San-Francisco style Rusty Blazenhoff, CC BY-SA

Beyond the travel industry

The digital detox is just one manifestation of the now widespread notion that to live well in a digitally dependent world, we need to disconnect from technology. In her 2012 book, The Winter of Our Disconnect: How One Family Pulled the Plug and Lived to Tell/Text/Tweet the Tale, the author and journalist Susan Maushart explains how she grew so concerned about her family’s dependence on electronic media that she took them into what she calls “rehab” and a “digital detox” for six months.

In a similar vein is Unplugged: How to Live Mindfully in a Digital World, by Orianna Fielding, whose London-based Digital Detox Company provides training and retreats for people and businesses. The book gives readers “techniques that teach you how to manage your online world in a healthy way”, including step-by-step detoxing programmes that can last from a few minutes to a weekend.

Many of us are instinctively moving in a similar direction. People are creating technology-free times and zones at home, turning notifications off on their mobile phones and hiding technology from their children or limiting its use. At certain times of day, some people close their email or switch off their internet routers.

Never popular: child technology rationing Sabphoto

Another view

The difficulty with all of this is that it identifies the wrong problem. Talking about internet addiction starts from the premise that the technology is intrinsically bad and therefore needs to be rationed. In reality technology is neither good nor bad, but simply a means to an end. The notion of living without it is virtually inconceivable. Many of the things we used to do, from buying groceries to calling parents to writing postcards, are now things that we either do or substitute using digital technology.

It doesn’t mean to say that spending your life online is necessarily a good thing, but detox is not the answer. It may provide temporary respite, but we have to make up for it as soon as we plug back in. What is the point of coming home after an offline mini-break only to face 200-plus new emails in your inbox?

Unplugging also increases the onus on individuals to manage their digitally dependent lives. It becomes the responsibility of employees to develop strategies to deal effectively with the likes of large volume of emails – a workload unknown to previous generations.

Why you may as well answer some emails on your holiday. Cartoonresource

More meaningful discussions

The more pressing issue is how these technologies are being used to create and sustain the market economy that we live in. Online retailers can collect data on our purchases and preferences and sell this information on to advertisers, turning us into commodities. Engaging effectively in social media and professional networking sites requires constant updating of our profiles and content so that we become marketable individuals. Email can be used as a tool to raise our productivity by making us available outside working hours.

I come up against some of this in my own working life as a university lecturer, at a time when the student-lecturer relationship is moving from learner-teacher to customer-service provider. Students frequently email me about lectures they increasingly do not attend, and questions that I have already answered in the course handbook and on our website. In a sense, these emails require me to do my job twice.

But responding still matters in a context where student satisfaction feeds into university rankings, and academics are under pressure to help make their institutions more marketable. For years I responded by repeating the information, but recently I introduced a policy that they could only email me to arrange a one-to-one meeting, while strongly encouraging them to ask any questions during lectures and tutorials. I now ignore most other emails.

The number of student emails in my inbox has since decreased and I am having many more meaningful discussions with my students at lectures, tutorials and one-on-one meetings. Digital detox would have had no answer to this problem, except to postpone dealing with the emails. Instead I have both reduced my email traffic and, more importantly, restored my identity as a teacher and my students’ identities as learners.

A little recalibration

Individuals and organisations are also changing how they use email in other sectors. Daimler, the German car and truck manufacturer, implemented a new programme last year that allowed employees to set their email software to automatically delete incoming emails while on annual leave. This “mail on holiday” programme issued an out-of-office reply indicating that the email would be deleted and for pressing matters, offered the contact information of another employee.

Martha Payne. Danny Lawson/PA

All of this goes much further than email, of course. Martha Payne, the Scottish school pupil who started the NeverSeconds blog on her thoughts and experiences of school meals, became an international hit and put pressure on caterers to improve their food. Social media in the Arab Spring became the key medium for organising the protests that overthrew governments. Social media is used to bring about social change, not just share the latest selfie.

Disconnecting from digital technologies is like sticking our heads in the sand. It prevents us from asking how technologies are changing our lives in particular ways and whether it is for the better. It also stops us from reclaiming these technologies and re-purposing them for different goals and values.

First colour images of Ceres revealed as Dawn approaches

Cratered surface of Ceres in colour. NASA/JPL-Caltec/UCLA

Astronomers and planetary scientists have been waiting with baited breath for the first detailed close-up images of Ceres, the solar system’s largest asteroid. Now, with NASA’s Dawn spacecraft approaching closer each day, tantalising new colour imagery has revealed new details of the geological processes that formed Ceres.

Orbiting the sun between Mars and Jupiter, Ceres is also given the somewhat controversial classification “dwarf planet”. The Dawn spacecraft eased into orbit around Ceres a few weeks ago, and has since then been slowly circling across the dark, night-side of Ceres away from the sun. As the spacecraft begins to creep within sight of the day-side of Ceres, we wait for more detailed images of the “white spots” and other intriguing features seen during the spacecraft’s initial approach.

Ceres, seen from 21,000km. Source: NASA/JPL-Caltech/UCLA/MPS/DLR/IDA

Gravity, ice and the white spots

Ceres measures nearly 1,000km across its equator, massive enough for it to have been pulled into a rough sphere by the force of its own gravity. This is made somewhat easier by roughly a quarter of its outer portion comprising of ice, whereas its interior is rocky. Is Ceres’ icy shell solid all the way down to the rock, or have lower layers of the ice melted to produce the sort of internal ocean known to exist within some of the icy satellites of Jupiter (Europa) and Saturn (Enceladus)? If there is an internal ocean, this could account for plumes of water vapour seen venting from Ceres last year by the Herschel space telescope – not to mention those mysterious white spots seen on the Ceres' surface.

A Ceres of images taken by Dawn during its approach. White spots, possibly water vapour plumes, can be glimpsed in the 2nd and 3rd images. NASA/JPL-Caltech/UCLA/MPS/DLR/IDA

Dawn has also taken colour images, now released, of Ceres as it approached. The colour images are formed by combining data recorded through three different colour filters in Dawn’s camera: blue, green, and near-infrared. These three channels, displayed as blue, green and red and amplified a little, look much like what human eyes would see if we were able to see a little beyond the red end of the spectrum. A colour map made of Ceres has been created by stitching together a series of images taken as Ceres rotated underneath the spacecraft, as seen in the main image above. The colours are different to the image released by NASA as the channels have been rearranged to match natural RGB more closely.

The detail and colour from the images reveal many variations across the surface of Ceres. What is probably relatively pure or clean ice appears blue, whereas areas contaminated by rocky or carbonaceous material appear relatively red, as in this image of Europa.

Saturn’s moon Europa, with close up showing valleys in the icy surface. NASA/JPL/University of Arizona

Within weeks Dawn will reach its final orbit distance of around 250km from the surface, and we’ll start seeing Ceres, bathed in the light, in much greater detail.

We need better broadband but the politicians can't agree how to deliver it

Connecting up every house is a not a job for the fainthearted. woodleywonderworks, CC BY

Access to a reliable, high-speed internet connection is now accepted as essential. So it’s no surprise that access to broadband and infrastructure investment are policies found in the Conservative, Labour, and Liberal Democrat manifestos (any mention of digital infrastructure is notably absent from the UKIP manifesto).

One of the underlying issues is that a sizable minority of those living in the UK – official stats say more than one in ten – have never used the internet. Many others do not have internet access in their home, especially those living in remote and rural areas where outdated telecoms infrastructure has yet to be upgraded to match today’s digital needs.

On average a fifth of homes and businesses in rural areas can be considered “not served” or “under-served” in terms of their connectivity. Surveys conducted by the dot.rural Digital Economy Hub at the University of Aberdeen reveal the various problems people face.

Some want internet access but service providers can’t connect their homes through lack of broadband infrastructure in their local area. Others struggle with very slow or unreliable connections. This makes both personal and business life online difficult or impossible as we rely more and more on the internet.

In fact, the government’s Digital by Default campaign looks almost guaranteed to exclude millions of people nationwide without major internet infrastructure improvements – and this should be a major cause for concern. The House of Commons Select Committee for Environment, Food and Rural Affairs held a Rural Broadband Inquiry for just this reason, particularly in the light of plans to make the Common Agricultural Policy payments process online-only.

Reaching the last 5%

So are party promises likely to actually address these issues? The Conservatives pledge to deliver “super-fast broadband” to urban and rural areas and provide 95% coverage across the UK by the end of 2017. This is a project that has been underway for more than two years. However, there are already concerns that this target will miss delivering broadband to people’s homes – it was originally scheduled for the end of 2016.

Broadband Delivery UK, the government’s funding vehicle tasked to roll out fixed-line infrastructure improvements to consumers, has largely concentrated on the “low hanging fruit” of upgrading infrastructure in densely-populated areas. Money spent here benefits more people. But what of the last 5%, or even the last 1%, far from the lights of the city and fibre-optic cables?

Commercial ISPs cannot be relied upon to connect rural areas, due to the high cost of laying infrastructure to supply only a few customers – a classic case of market failure, acknowledged by both parties. Labour’s claim that “all parts of the country” will “benefit from affordable, high-speed broadband by the end of the parliament” sounds – to put it kindly – optimistic. There’s no detail as to how this might be achieved in practice.

More realistically, the Conservatives at least propose to subsidise the cost of installing satellite services capable of super-fast broadband speeds for the very hardest-to-reach areas. Clearly an acknowledgement of the need for alternative technologies is welcome. This could provide sufficiently fast connections without the enormous costs of rolling out many miles of fibre-optic cable. Encouraging use of satellite broadband connectivity could be the most pragmatic solution to reach the most remote-living few percent of the UK population. It certainly a useful start.

Fix now or for the future

Is satellite broadband an acceptable long-term solution, or a quick fix? It will depend on reliability, cost, and the difference in speed compared to fixed-line services. Welsh and Scottish governments have run similar schemes for their remote rural areas. Our own work in setting up the Rural Public Access WiFi Service illustrates how better internet access can improve business efficiency, increase user adoption of digital technologies and provide wider access to public services, cost savings, enhanced business revenues and sociability.

The Conservatives also pledge to free up more of the telecommunications spectrum currently reserved for public sector use. This would provide more capacity for mobile phone providers to deliver enhanced 3G and 4G mobile broadband for phone users, as an another alternative to fixed-line internet.

However this runs into similar problems – densely populated urban areas will clearly benefit from more capacity to relieve overburdened networks, but offering cellular data services for rural areas would require service providers to install expensive mobile phone masts and equipment – and so are unlikely to see much benefit.

From the point of view of someone living in west Wales, the Scottish Highlands, or even the heart of England’s shire counties, this particular Conservative pledge for mobile connectivity sounds like a case of attempting to run before you can walk.

We’ve demonstrated how digital inclusion can change people’s lives and possible ways of connecting the most remote. While there’s no instant solutions in the party manifestos, it is encouraging at least that the importance of the digital agenda is recognised across the board.

Parties short of ideas on how to secure Britain's digital future

There's few enough bright sparks here. ev0luti0nary, CC BY-ND

Opening Labour’s 2015 manifesto made me wonder whether I’d downloaded the right document, as it states that we’re “at the start of the internet revolution” – a peculiar viewpoint for a supposedly future-focused policy. It had me wondering what the party thinks has been happening for the last 25 years since the birth of the web.

The manifesto contains some principles that are right for delivering a sound digital future, but the party comes across as out of touch with the cutting edge of digital innovation by offering a series of predictable and uninspiring (if necessary) policies. For example, the need to invest in skills to ensure there is no shortfall of next-generation coders and creatives. Yet there’s no mention of updating those skills, or even trying to nurture a skillset within the population that’s more adaptive to changing digital needs.

More required than just a connection

The need to plug holes in the UK’s broadband infrastructure and fill in the mobile phone coverage “not spots” is obvious, but is no different from other parties' aims including the ubiquitous desire to achieve “digital inclusion”. The Conservatives take a similar line, focusing especially on ensuring libraries have free Wi-Fi on offer.

Yet in this race online, none of the parties offers much explanation of what this means beyond getting more people connected. Nor do any of them distinguish between different levels of access and the effect it has on civic participation. Getting the last 10% of people online is no guarantee they will reap the rewards. We have moved on from mere access to the internet to the need to inform how and what to do with it – a matter of digital literacy that is crucial if the internet is to provide any empowerment.

Labour’s manifesto really puts digital at the heart of government, through aims for greater efficiencies through better data sharing and use of technology across the civil service. Labour’s eggs seem to be all in one basket, yet its aspirations do not go far enough to confronting the major digital issues the public faces. In contrast, the Conservative party focuses on highlighting next generation technology: ultrafast broadband and 5G mobile networks.

Rights and data

Labour’s digital promises are found within its economic strategy, and scant attention is paid to other more wide-ranging issues that stem from the adoption of the internet into our lives. For example, the Liberal Democrats make a point of championing the need for a digital bill of rights – a proposition set out by Sir Tim Berner-Lee in 2014, and by others before and since, as necessary to ensure the internet remains a place of freedom and innovation.

It’s important that governments protect people from exploitation or other harm online, and setting forth citizens' rights to control their own data deserves to be a major priority of any party in government. But there’s little said about data beyond that held by government – in fact most personal data on citizens is held by private companies and stored for proprietary services – something that goes without mention in Labour’s manifesto.

With an exponential growth in health data from wearable trackers produced by Apple and other tech firms, there’s a need for a framework for controlling, migrating and protecting this data across different services from different providers. No firm should be allowed to lock users, and their data, into a single platform in perpetuity. In fact the lack of attention paid to the growing mobile health market alone is glaring, but the same applies to online medical records, music collections on streaming services, or all manner of data.

Policymaking for the present

Politicians need to recognise that this isn’t the “beginning” of anything, but a mature global platform that in a little more than 10 years has reshaped most markets on the planet. Policies need to reflect what’s happening now – with the growth of the internet of things, something also absent from any party’s manifesto, the challenge will exponentially increase.

Overall, Labour’s digital manifesto doesn’t go far enough to identify what’s really at stake, nor bold enough to promise the changes required to ensure we’re best placed to reap the benefits of the digital economy.

The Lib Dem’s aspiration for a digital bill of rights is heading in the right direction but is founded in paranoia, rather than empowerment. The Conservatives are similarly focused on protecting people online, but campaign’s like the Web We Want need to be so much more, focusing on empowerment, ownership, authorship, and on the changing digital desires of our population.

Revealed for the first time: map sheds light on dark matter that binds the universe together

Dark Matter: as simulated, the scaffold that underpins the universe. Virgo Consortium/Crain/Geach

Dark matter is the most common stuff in the universe. A billion sub-atomic particles of dark matter pass through your outstretched hand every second, yet few if any of these ethereal particles might actually touch and rebound from your hand in your lifetime. Now, studies are beginning to shed some light on this mysterious substance.

Astronomers have known since the 1930s that there is more than just the visible universe. The Milky Way, the galaxy we live in, is spinning too fast to be held together by the gravity between its stars. If stars were all there is, we should have long ago been flung off our cosmic roundabout. Instead, our galaxy contains about six times more material of some kind than is accounted for by every atom of all the elements in the periodic table: material known as dark matter.

Dark matter is invisible and can be detected only though the effect its gravity has on things we can see such as passing rays of light – an effect known as gravitational lensing. This is like looking through an uneven pane of glass which, while transparent, is obvious because of the distortions it produces on objects seen through it. By calculating the extent of the distortion, it’s possible to work out the thickness of the glass.

The recently released Dark Energy Survey used gravitational lensing to generate a huge map of dark matter. As seen from the Blanco telescope in Chile, they saw a crisscrossing web of thick, dark matter filaments.

A map of cosmic dark matter, as seen from the Earth. Colour represents dark matter, increasing towards red. Circles mark galaxies and galaxy clusters. Dark Energy Survey

The dark matter web is the invisible scaffolding that underpins the entire visible universe. The scaffold formed very soon after the big bang, and its gravity began to pull in all the ordinary material of which stars, planets and people are then built. Indeed, the galaxies are all found along dark matter filaments, with clusters of up to a thousand galaxies located wherever filaments cross each other.

So now we know where dark matter is. To find out what it is, we need the Hubble Space Telescope to zoom right in to the dark matter map.

Light vs Dark

On Earth we use particle accelerators to find out what matter is made of, firing particles at each other with enormous energy and seeing what the collision produces. This has been the principle behind experiments from Lord Rutherford’s discovery of atoms in 1908, to mankind’s biggest experiment, the Large Hadron Collider at CERN. But we can’t capture dark matter, nor interact with it at all. Nature, however, provides the experiment for us: we can watch what happens when the dark matter around galaxies or clusters of galaxies smash into each other by chance.

Galaxies are made from three ingredients: stars, dark matter and swirling clouds of gas. When two galaxies collide – an event involving expanses of time and space and size that makes it hard to comprehend – individual stars almost always pass straight unscathed. They are pinpoints of matter separated by vast regions of empty void. Conversely, the clouds of gas smash into each other and are pulled by friction to a stop. Dark matter is expected to behave somewhere in between, and its trajectory out of a collision should reveal its properties.

Points representing visible stars and galaxies (left) as seen through effects of gravitational lensing (right). TallJimbo, CC BY-SA

Astronomical particle colliders

In one well-studied collision known as the Bullet Cluster, dark matter appeared to whizz straight through the collision. As close as we can tell, dark matter kept pace with the stars, not measurably slowed by its ordeal. But interpreting only a single collision is difficult. We must reconstruct the 3D scene from just one viewpoint and one freeze-frame from a movie that lasts 100m years.

To crowd-source the full movie, we recently observed 72 high-speed collisions of the dark matter around galaxy clusters. We view some from the side, others head-on and each at a different stage in the crash. Reconstructing the statistical properties of a dark matter collision, we confirmed robustly that dark matter interacts very, very little with anything else.

The Cerro Tololo observatory, home of the Victor Blanco telescope used. David Walker, CC BY-SA

The dark matter drag factor

Now we’ve also reported our observations of a 73rd collision. This involves individual galaxies, rather than clusters, which remain sufficiently intact for the immense gravitational forces to swing them around and throw them back into each other again. It makes for a very sensitive experiment. If invisible dark matter feels even a tiny amount of friction, it would eventually grow into a detectable lag behind the visible stars. Our collision itself is also nearer to Earth – and happens to take place perfectly in line with a gravitational lens, providing us the ideal viewing angle to track dark matter.

We found that the dark matter is indeed slightly offset from the stars. But while this is a more sensitive experiment than the cluster collisions, it’s also harder to interpret. The gas that originally accompanied the galaxy has slowed so much that it is long gone – and this removes one calibration point against which we could compare the behaviour of dark matter. Nor do we know the exact duration of the collision: an offset could be produced by a small amount of friction for a long time, or an even smaller amount of friction for a longer time.

Simulating hypotheses

After such a long, messy collision, there might also be a more mundane explanation for the offset visible stars and dark matter. We can’t think of any yet, but Durham University’s Institute for Computational Cosmology runs the world’s biggest supercomputer simulations of dark matter. We’re teaming up with the Institute for Particle Physics Phenomenology in order to simulate millions of cluster collisions with different physics, to see if we can reproduce the observed offset in any other way.

The thought that dark matter might interact with, or respond to, forces other than gravity is tantalising – even a very small interaction is completely different to none at all. Once two particles of dark matter can interact, they need another type of particle (a force carrier) to interact through. At this point the bare bones of dark matter chemistry begins to emerge.

So for 80 years, scientists have suspected that an invisible, parallel dark universe exists around us, but remains elusive. Dark matter has always been described in terms of what it isn’t. With these experiments, we are for the first time describing dark matter for what it is.

Google and Android in the firing line as EU pulls trigger on competition inquiry

Offers of candy won't prevent the European Commission's scrutiny now. Google by Asif Islam/Shutterstock.com

The are some specific words that are not particularly popular with the European Commission: “hi-tech”, “anti-competitive” and “bundling”, to name a few. Throw “US firms” into the mix, and the result is as many expected: Google has been accused of anti-competitive practices in Europe.

The culmination of a three-year investigation, the commission will now examine not only the prominence of Google’s own services in its search results, but also launches an inquiry into Android, Google’s mobile phone operating system.

The European Commission’s competition chiefs have sent a Statement of Objections to Google, requiring the search giant to respond to allegations of anti-competitive behaviour in online shopping, where “Shop with Google” links – paid for by advertisers – are promoted over other search results.

Concerns of anti-competitive behaviour will similarly form the heart of the commission’s investigation into Android, which is expected to focus on Google’s agreements with tablet and smartphone manufacturers which might fall under Article 101 of the Treaty of the Functioning of the European Union (TFEU).

These sorts of contractual arrangements include exclusivity agreements, such as where manufacturers are required to pre-install Google’s applications and services exclusively in their tablets and phones – for example, apps such as Google Maps, Gmail, Play, Music, Search and the other elements of the Google-branded ecosystem. They also include agreements whereby manufacturers are restricted from developing and marketing rival products to those Google offers.

The commission will also investigate Google’s practice of bundling its applications and services. Tying and bundling occurs when the supplier requires that two or more products are purchased together, even though they might have not been requested. This practice can be equated to abuse of dominance, especially when the supplier is a market giant the size of Google – and particularly in Europe where its dominance in search is greater than in the US and other markets.

This anti-competitive behaviour is likely to trigger Article 102 TFEU, which prohibits the abuse of a dominant position due to its likelihood to prevent or restrict competition. Similar issues have dogged Microsoft, which was dragged through the European courts for anti-competitive practices involving, among other things, software bundling and designing its products in such a way that it was difficult for third parties to create compatible products.

Bundling Google’s many products is one bone of contention. logos by Yeamake/Shutterstock.com

Google comes out fighting

In anticipation of the investigation, Google issued a memo presenting its basic argument against the commission’s allegations and aiming to reinforce its brand as a promoter of innovation and an investor in new ideas.

Google points to the open-source nature of the Android system, the pricing of its products, as well as the existence of a vibrant competing market for apps and services – worth US$7 billion in revenue for developers and content publishers last year alone. The point Google is trying to make is that in a market where innovation thrives and consumers have wide choice characterised by low prices, there cannot be a negative or anti-competitive effect on trade.

Practically speaking, this investigation is likely to lead to a highly protracted court case – the EU case against Microsoft took 16 years. If and when Google is charged with breach of EU Competition Laws, the firm could face fines up to US$6 billion. But the bigger problem for a company the size of Google is the legal costs such a protracted case will incur. Distracted by arguing its case against the European Commission, Google risks falling behind in its highly competitive and fast-moving industry.

Proceed with caution

A lesson from the Microsoft saga is the importance of timing – Microsoft was ultimately forced to unbundle software such as its media player from Windows many, many years after the case was brought – at a time when it no longer mattered. The pace of technological progresses far outstrips the European Commission’s ability to keep pace, and the grounds for a lengthy investigation launched in 2015 may no longer be relevant a few years from now. Markets can change overnight, something of which the European Commission is well aware.

Ultimately, the technology industry and associated markets have unique characteristics in respect of competition law – the pace of innovation means no one can be sure today what tomorrow’s big products will be. Consequently a dominant firm today may be last in line tomorrow. Competition specialists have long identified this fact and called for caution when intervening, as competition in the field of innovation takes place not in today’s markets, but for the markets of tomorrow.