There's a new sheriff in town, with the initials FTC. In September, the US Federal Trade Commission made a landmark move in establishing some jurisdiction over search engine results.
By now, you may have seen the headlines of how the FTC stopped an alleged scheme to mislead consumers to porn sites via search engines. That's a big deal, which we'll look at below, but the real story is that this is the first time a government agency has ever asserted regulatory authority over search engine listings.
"This is definitely a case of the FTC stepping in to take control," said Stephen Cohen, lead attorney on the recent case.
It's a good move. For too long, there's been an almost "anything goes" attitude when it comes to manipulating search engines. While the services themselves do much to combat spam, I still receive constant complaints from readers that see it get through, even after contacting the search engines about it.
The FTC's action is a big deterrent against the worst type of spam, that which attempts to mislead users. Those contemplating this type of behavior can no longer assume they'll get away with it because the search engines are too busy to care, or because victimized site owners can't undertake expensive copyright or trademark infringement lawsuits. The FTC cares, and it has now shown a willingness to take action on behalf of consumers.
In this case, the FTC accuses Portugal resident Carlos Pereira of misdirecting consumers to porn sites when they instead expected to reach sites about recipes, movies, children's songs, automobiles and many other non-sexual topics. Also named was the company running the sites that received traffic from Pereira's work, WTFRC.
The FTC says that Pereira would make copies of other people's web pages, submit them to the search engines, then benefit if these pages ranked well for particular search terms. For instance, the case cites an example where the top ranked site for "kids Internet games" at AltaVista appeared to be a page from the Mining Company (now About.com). Selecting this page instead took users to an adult web site. Additionally, using the browser's Back button or trying to close the browser caused new windows to open displaying additional porn sites, something the FTC has labeled "mouse trapping."
Ironically, it's a tactic that's losing value as search engines continue to apply other criteria for ranking pages beyond the words that appear on the page itself. Taking a high-ranking page and putting it on another server is no guarantee of gaining the same positioning. Nevertheless, use enough pages, and you'll generate some traffic and maybe even gain some key spots. And according to the FTC, the number of pages estimated involved in this case was huge: 25 million.
Some press reports have given the impression that the victimized web sites were "hacked" and "hijacked" so that anyone trying to reach them was automatically redirected to a porn site. That's not the case. The victimized sites continued to operate as exactly before. No one hacked into them or the search engines. Instead, pagejackers hope to capture visitors by misleading them into thinking they are getting something they want. This only happens if the visitors take the bait planted in the search engine results.
It's all the more reason for search engine users who wish to protect themselves to look closely at the URLs listed for each result. For instance, here's one of the pagejacking examples from AltaVista cited in the case:
Kids Internet Games - Home Page
THE starting place for exploring Kids Internet Games, from your Mining Co....
Notice the term "anal" used in the URL. That's a dead giveaway that this is a site that has nothing to do with kids. Also, spammers often use numbers for their pages, such as 141 in this case. Or course, perfectly legitimate sites also use numbers. Nevertheless, by looking at the URL in addition to the page title and description, you may protect yourself from unpleasant surprises.
This isn't the first legal action involving search engine results, just the first filed by a government agency. Most search engine related suits have involved companies upset with others for using their trademarks. Similarly, the victimized sites in this case could have filed their own lawsuits claiming copyright infringement, since their pages have apparently been used without permission.
In contrast, the FTC suit seeks to protect consumers, not intellectual property rights. That fits in with its charter. Those concerned about possible trademark or copyright infringement relating to search engines shouldn't expect the FTC to step in on their behalf, Cohen said. Nor is the FTC planning to police all types of spam.
"We have no intention of regulating content. That's not was this case was about. This case was about lying to consumers about what you were selling. People thought they were going to pie recipes, movie reviews, folk songs," Cohen said. "That was the misrepresentation, and when consumers clicked on that, they were taken to an adult site, not what they intended. This is where the unfairness comes in. People couldn't get out."
Explaining further, he said, "We probably aren't going to do anything about the people who put Pamela Anderson Lee in their meta tags 50 times to get higher in the search results. I don't think that's what we are about, though we don't like that practice," Cohen said. "We're concerned about totally irrelevant search results, such as filling meta tags with typical search terms, when intending to sell adult content."
Cohen said that FTC does want to hear from consumers who feel mislead by listings in search engines, especially in cases similar to this one. However, he said consumers should first try contacting the search engines, to get them to take action.
The search engines themselves also need to step up responsiveness, in this area. Cohen said one of the victimized parties involved in the suit complained about AltaVista's slow response in the matter, and I know from the feedback I receive that this is fairly typical for the industry as a whole.
"I think the search engines really need to help. We can't police all this ourselves," Cohen said.
In turn, AltaVista marketing director Tracy Roberts said the FTC action will help her service better deal with spam.
"With the FTC drawing a line in the sand about what is acceptable and what's not, that gives us a way to push back," Roberts said. "We spend a lot of time and energy and resources combating spam. This is a big draw on our resources, and I'm really happy there are deterrents."
The FTC case was filed on Sept. 13, and the US District Court for the Eastern District of Virginia granted a restraining order against the defendants a week later. That gave the FTC the ability to close the defendants' web sites by getting their domain names suspended. In what appears to be a first, the court allowed the restraining order to be served via email. The case is also notable for crossing national boundaries. Authorities in Australia and Portugal worked with the United States to take action.
There are a number of lessons for site owners to take away from this case:
1) Ensure that any company you use to generate search engine related traffic is not misleading users. Remember, both the promotional person and the company receiving the traffic got named in this suit. Take a hard look at exactly how they are helping consumers reach your site.
2) Similarly, ensure any promotional company you hire is not using other people's web pages or even portions of other people's web pages. In the latter tactic, companies sometimes take portions of high ranking pages and combine them all into a single page. Both tactics could lead you to be named in trademark or copyright infringement suits. Similarly, this is clearly a tactic the FTC wouldn't like.
3) If you do your own promotional work, obviously follow the tips described in 1 and 2.
FTC Halts Internet Highjacking Scam
FTC Press Release, Sept. 22, 1999
Details of FTC v. Carlos Pereira
Plenty of nitty-gritty details about the case. Especially look at the comments at the bottom of the Motion for Temporary Restraining Order to see how this adversely impacted consumers.
FTC moves against Internet scam
MSNBC, Sept. 22, 1999
More details of the FTC's action.
Scam diverts surfers to porn sites
MSNBC, May 18, 1999
The article that first attracted the FTC's attention to the case.
Search engines can be tricked into serving up porn sites
MSNBC, Aug. 18, 1999
Another article about stolen pages which also become part of the FTC suit.
Bait-And-Switch Gets Attention
Search Engine Report, June 1999
Short piece I did talking about how cloaking complicates finding pagejackers. Note -- cloaking was not involved in this case.
Search Engines and Legal Issues
Links and information about meta tag lawsuits and other disputes involving search engines.
Kid Search Engines
This page lists search engines with filters designed to screen out porn sites. However, filtering wouldn't have helped in this case. The pages involved contained no pornographic terms, so the filters wouldn't have caught them.
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