e to innovate and invest in ITA's technology and Google must continue to provide ITA's most recent technology to all competitors, and indeed, to all other participants in the travel industry, including other search engine companies (e.g., Bing) and sellers of travel services that will soon find Google a direct competitor, and must do so at fair prices ("commercially reasonable terms"). Google cannot enter into exclusive agreements that would cause airlines to limit their provision of information to competitors. Google cannot data mine competitors in order to infer their strategies; that is, Google must establish a firewall that prohibits access and use of confidential information generated by other participants in the travel industry. Google cannot require airlines to enter into agreements that restrict their rights to share data with parties other than Google. Google must submit to mandatory arbitration "under certain circumstances" and to "a formal reporting mechanism for complainants if Google acts in an unfair manner." And yet, as constructive as these terms sound, and as confident as the DoJ appears, the following risks were not adequately addressed: Google will provide competitors with its latest code but will it provide timely notification of changing code specifications and interface designs? Travel code is constantly being improved. USAir offers two categories of coach fares on their website, while Southwest offers three and Air Canada is moving to à la carte feature-by-feature pricing. We know from the Microsoft antitrust litigation that software interface designs are constantly changing as code is improved, and we know that competitors who are not given advance notice of changing interface design are always behind in incorporating the latest releases of software. Google has agreed that it will not perform data mining on competitors but, really, is it possible to know if Google were abusing competitors' sensitive information? First, remember that this is Google, the company that "accidentally" tapped our Wi-Fi traffic and "accidentally" recorded sensitive account information in the Wi-Spy scandal in the US and abroad, promised to stop, and then requested enough information to perform identity theft on our children in the Doodle 4 Google gaffe. Our own experience is that it is very difficult to detect snooping when companies use a competitor's offering to perform an essential service. For example, one airline suspected that it was receiving insufficient revenue from a reservations system operated by a competitor, while the competitor claimed that it was giving the first airline more than its fair share of tickets. Only by going through actual tickets and examining the source of the reservations and performing complex data analyses on the huge data set were we able to figure out what was really happening. The first airline was indeed being given more than its fair share of tickets, but it was mostly getting those tickets that were booked with deeply discounted fares, while the company that operated the reservations system was keeping the full fare customers for itself on days when it knew the flights were likely to sell out; that is, the first company was getting more than its fair share of tickets, but less than its fair share of revenues and profits. What exactly could the Google of Wi-Spy and Doodle do to competitors without detection if it chose, why exactly would it stop snooping now, and how exactly would competitors know if Google had accessed and abused their sensitive data? Google has promised to provide its competitors with fair access to ITA's latest software, but will Google provide these competitors with fair access to the customers they are all seeking to serve? Nowhere does the decree explicitly mention Google's future obligation to provide other firms with access to customers by ensuring that Google will not preference its own offerings by placing them higher on the search page, and nowhere does it ensure that competitors will have access to customers at a commercially reasonable price. This last point is certainly the most important, and will be addressed in more detail. The Consent Decree itself attempts to ensure that competitors can continue to use ITA software on equitable terms; it is more important to ask if competitors will even be able to exist, with or without access to ITA software, if Google is permitted to encroach through vertical integration into the competitors' lines of business. While the first two points are relevant in that they will need to be addressed to make the consent decree workable, the last point may actually require that the consent decree be rejected. Before examining the issue of fair access we first we need to consider some common, indeed pervasive, misconceptions that have come to dominate the Google antitrust debate. Misconceptions About Google and Antitrust The discussion of Google and antitrust has shifted in recent weeks from relevant market (is Google 65% of paid search, 32% of online advertising, or 3% of all advertising?) and anticompetitive behavior (is Google engaging in "preemptive line extensions," unfairly squeezing out competition by pricing its non-search offerings below cost, or unfairly listing its own offerings above those of competitors?) to consumer happiness and consumer convenience. Mainstream publications have adopted the consumer happiness argument. There are three problems with this analysis: Consumers are not always the best judges of their own welfare. Happiness and convenience are not always the best measures of welfare. Current happiness and convenience are not always the best measures of long-term future welfare. The relationship between consumer happiness and consumer welfare, and the relationship between current and future consumer welfare, are explored in a previous post. What Form Could Harm Take? We believe that shifting the discussion away from Google's share of the relevant market and possible antitrust violations to consumer happiness as an indication of consumer welfare is dangerously misleading. Surely a search engine can keep consumers happy, with convenience, among other things. And surely, by bypassing competitors and redirecting consumers to its more convenient web offerings it could grow its share. Then, it could use its market power to demand discounts, which it would share with consumers, much as hotels.com did. Ultimately, competing websites would lose importance, and indeed they might fail, further increasing Google's market power. Then, Google could demand excessive commissions, perhaps as high as the 30% commission once charged by hotels.com. Consumers would not complain; they would be receiving apparent discounts, discounts below hotels and airlines published prices. Indeed, consumers would be happy with the added convenience and apparently lower price. Notice the progression: Consumers are offered increased convenience at no visible cost to themselves and are happy. The competitive process is harmed. Third parties, online travel sites that want to be found, or hotels and other actual travel service providers that want to be found, pay higher fees, although these fees are never directly visible to happy consumers. These higher fees inevitably increase the operating expenses of the entire travel industry, and inevitably increase consumer prices, while remaining invisible to consumers in the third-party payer business model, and while consumers remain content and oblivious to harm. It really would not possible for the hotels' and airlines' own direct distribution sites to compete, or for travel integration sites like Kayak or Orbitz to compete, unless consumers were willing to examine and compare the offerings of each URL separately rather than using search at all. Not only is there no limit to what Google could charge travel sites to "not be not found," which is the problem existed before Google's move into search; now Google would have a reason to hide some or all of these sites no matter what they are willing to pay. The nature of harm to the competitive process, and the nature of consumer harm that would inevitably result, are explored in a previous post. The Bottom Line -- Harm and Remedies Consumers appear to be well-served at present, and consumers may even believe they are well-served at present, but ultimately and inevitably they will not be