Peter F. Neronha, U.S. Attorney for the District of Rhode Island
by Peter F. Neronha
U.S. Attorney for the District of Rhode Island
On August 19, 2011, Google Inc. entered into a non-prosecution agreement (NPA) with the United States Attorney’s Office for the District of Rhode Island. This agreement resolved the government’s long-running investigation into Google’s advertising practices concerning online pharmacies. Under the terms of the NPA, Google agreed to forfeit $500 million to the United States for allowing Canadian online pharmacies to target U.S. consumers with prescription drug advertisements. The Google NPA is significant not only because of the amount of the financial forfeiture by Google and the extensive remedial steps that the NPA obligates Google to take; it also highlights the threat that imported, unregulated prescription drugs pose to U.S. consumers. In addition, the Google NPA marks the first time that a search engine has acknowledged responsibility for facilitating the improper conduct of its advertisers.
The Google NPA was the culmination of a multi-year investigation by the Rhode Island Task Force of the Food and Drug Administration’s (FDA) Office of Criminal Investigations. The investigation had its origins in a separate, multimillion dollar financial fraud prosecution unrelated to Google in which the main target fled to Mexico. While a fugitive, the target began to advertise the unlawful sale of drugs through Google’s AdWords program. After the United States Secret Service apprehended the target in Mexico and returned him to the United States, he cooperated with law enforcement and provided information about his use of the Ad Words program. During the ensuing investigation of Google, the government created a number of undercover websites that advertised the unlawful sale of controlled and non-controlled substances through AdWords.
The subsequent investigation established, and Google acknowledged in the non-prosecution agreement, that beginning in 2003 Google was aware that in almost all instances it was illegal for pharmacies to ship controlled and non-controlled prescription drugs into the United States from Canada. Google further acknowledged that it was aware that importation of prescription drugs to consumers in the United States is unlawful, because these drugs are not FDA-approved and therefore may not meet the FDA’s labeling requirements; may not have been manufactured, stored, and distributed under proper conditions; and may not have been dispensed pursuant to a valid prescription. In the NPA, Google also conceded that Canadian pharmacies that ship prescription drugs to U.S. residents are not subject to Canadian regulatory authority, and many sell drugs obtained from countries other than Canada, which lack adequate pharmacy regulations.
In addition to admitting that it was aware of the illegality of importing prescription drugs, Google conceded in the NPA that it was on notice that online Canadian pharmacies were in fact advertising prescription drugs to Google users in the United States through Google’s AdWords "geo-targeting" feature. Finally, Google acknowledged that it provided customer support to some of these Canadian online pharmacy advertisers to assist them in placing and optimizing the AdWords advertisements that targeted U.S. consumers.
Prosecuting an internet search engine for aiding and abetting the illegal conduct of its users poses a substantial challenge. Generally speaking, the government must establish that the search engine possessed the requisite combination of knowledge and intent regarding the underlying criminal endeavor and did not act merely as an unwitting, neutral conduit for the principal defendant’s illegal activities. The Google NPA signals that, where evidence can be developed that a search engine knowingly and actively assisted advertisers to promote improper conduct, the search engine can be held accountable as an accomplice.