The DOJ’s Battle with Google and Its Message to Big Tech
Tech giants across the U.S. pay attention as Google prepares to take on a federal antitrust lawsuit (Solen Feyissa/Unsplash)
Google’s status as one of the most influential tech companies and arguably the most well-known search engine in the world is beginning to contribute its fair share of issues for the establishment. This all started in October 2020, when the United States Department of Justice (DOJ) filed a civil suit against Google LLC for committing antitrust violations under the first and second articles of the Sherman Act. Now, three years later, the case has gone to trial and Google is currently defending its legitimacy. But while Google and the DOJ are the ones battling in Washington, D.C., the implications of this case could be even more groundbreaking than either party could have foretold.
The Sherman Acts and Antitrust
The concept of antitrust as a legal statute began in 1890 when Congress passed the Sherman Act, legislation with the written intention of restoring competition among businesses and loosening restraints on all kinds of trade. The act’s main purpose at the time was to go after trusts—a method of establishing trustees to control the assets of different companies—hence the term antitrust. The assumption was that all other forms of monopolizing markets, those that unreasonably gave favor to a select number of persons, were illegal and could be prosecuted by the DOJ. Since then, Congress has passed two more antitrust laws: the Federal Trade Commission (FTC) Act, and the Clayton Act. The FTC Act’s main purpose is to ban any form of competition that is unfair or “deceptive,” while the Clayton Act was put in place to address anything the Sherman Act did not already cover, such as mergers and acquisitions that are conducted to gain control over trade or to create a monopoly. The Supreme Court has also come forward and stated that, while the FTC and Clayton Acts are separate from the Sherman Acts, violations of the former two acts are also, by definition, violations of the Sherman Acts.
Those who are concerned with the Google antitrust case that is currently happening commonly cite a similar landmark case for antitrust in the high-tech industry: the case against Microsoft. In the 1990s, the DOJ alleged that Microsoft’s control over the personal computer market was a monopoly, and the FTC intervened to run investigations. Microsoft ended up losing this suit to the DOJ and was charged with instating a monopoly through their ventures that made it harder for users to uninstall Internet Explorer, the company’s browser, on Microsoft computers. In addition, the government tried to split Microsoft into two different companies, but this ruling was overturned. The supporters of Microsoft claimed that antitrust laws prevented the success of businesses like Microsoft and stifled their ability to grow to their full potential. On the other hand, those who opposed Microsoft and supported the government’s stance in the case argued that Microsoft’s monopoly significantly decreased innovation in the rest of the tech field. All in all, this discourse set a precedent for other antitrust cases that would be brought up in the future, including the present one against Google LLC.
The Case With Google
The original 2020 suit against Google was submitted by the Attorney General of the United States, along with the Attorneys Generals of 11 other U.S. states. One of the main issues brought to light in this suit was Google’s exclusionary agreements with device companies like Apple and Samsung to make Google the default search engine on devices. The DOJ argues that, even though consumers of these devices can change the default browser, they rarely do due to convenience. The concern is that, with Google spending billions on these deals with tech companies, other search engines are at a disadvantage when it comes to the scope of their reach to consumers. However, during his testimony for Google, Apple’s senior vice president of services, Eddy Cue, stated that there is no “valid alternative” or any search engine out there that is “as good” as Google. And, while the determination of Google’s dominance over other search engines is subjective, Google has been leaning heavily on this for its defense.
One key reason for their supposed superiority over other search engines rests on the sheer amount of data they collect from their users, which they then utilize to make the consumer experience better. Due to its wide reach, Google is able to collect an immense amount of data on consumers, which incentivizes advertisers to pay Google to have their ads up on search result pages to target a specific audience. The DOJ found that the amount paid to Google for advertisement alone totals up to be approximately $40 billion annually. For the DOJ, this convenience for consumers is an inconvenience to other search engines that can’t possibly grow in the presence of Google.
The ruling in United States v. Microsoft also made many appearances in the original suit filed by the U.S. government. The ruling for that landmark case determined that actions like controlling default status on devices and making software difficult to delete or replace were anticompetitive and violated Section Two of the Sherman Act. This implies that the actions of Google in the present day are reflective of the actions that caused Microsoft to lose its antitrust case. And the insinuated effects are similar, too. The DOJ continually alludes to other search engines like DuckDuckGo being unable to compete in a market dominated by Google. From stifling innovation to blocking competitors, the arguments against Google are seemingly very reminiscent of earlier cases like United States v. Microsoft.
The company responded to the DOJ by stating that, if anything, an antitrust lawsuit would bring even more harm to consumers. “This lawsuit would do nothing to help consumers. To the contrary, it would artificially prop up lower-quality search alternatives, raise phone prices, and make it harder for people to get the search services they want to use,” they said. To Google, the inability of other search engines to compete only bolsters its position as the superior search engine for its quality, accessibility, user-friendliness, and scope. The company argued that the entire case should be thrown out because of the inappropriate nature of what the government was asking them to do. “Requiring Google to not compete vigorously—or requiring browser developers to alter their product designs and provide a worse experience for their costumers—would turn competition law on its head.”
The Case’s Significance
Regardless of the outcome of this trial, the significance of an antitrust suit of this scope is undeniable. Beginning with the original suit filed in 2020, the government has been sending a message to Big Tech that centers on undermining their efforts to maintain supremacy under the various articles of the Sherman Act, FTC Act, and Clayton Act. Regardless of who the suits happen to be directed against, the overall message to Big Tech is that their actions are under surveillance at any given time.
One big example of this has been, ironically, Microsoft. Recently, in their merger deal with video game developer Activision, Microsoft preemptively conceded pulling certain titles from competitor platforms. Many speculate that this is a blatant attempt from Microsoft to swerve potential accusations of antitrust law violations. But Microsoft is not the only company trying to avoid the current fate of Google. Even though antitrust lawsuits are very often unsuccessful at dissolving or separating companies into constituent parts, the suits themselves are incredibly disruptive for the companies they are aimed at. Companies like Microsoft, IBM, Meta, and more have been disoriented by these cases, and the team at Google is now in a similar position of being thrown off balance for the sake of protecting their entity. Regardless of who comes out victorious in this trial, the entirety of Big Tech is hearing the message of the DOJ: “You are on our radar.”
The Issue With Transparency
A case such as this one holds many implications for the tech industry and for antitrust rulings in general. However, much of the proceedings have been kept away from the public eye, and courtroom sessions themselves are unavailable to citizens. Speculators boil this down to Google’s steadfast desire to keep this trial under wraps and away from the discerning eye of its consumers. And while many believe the public has a right to be outraged, Judge Amit Mehta, the judge presiding over the case, complied with Google’s request to block public access to the trial. As a result, transparency experts conjecture that this case shouldn’t expect to get the same media coverage and public following the Microsoft case did.
While this may be Google’s exact intention, there is concern about the public being kept in the dark as to the very important specifics of the case. In addition, information about the case can be disseminated only by reporters and observers who are physically in the courtroom. Testimonies are also conducted in private. Many officials, such as Verizon executive Brian Higgins, DuckDuckGo CEO Gabriel Weinberg, and more, have given their testimonies out of the public eye. Some of these testimonies are only briefly available to the public, dispersed in 10-minute snippets.
Where Will the Case Go From Here?
The trial for United States v. Google officially began on September 12, 2023, and is set to last for 10 weeks. However, as of right now, closing arguments and results are not expected until the beginning of 2024. In addition, Judge Mehta has come out with a statement that if he does find that Google violated antitrust law, a separate trial would occur to determine the exact punishment. Often, decisions of this kind are appealed, so experts have stated that the final outcome might take years to dictate. Even in the face of a verdict, Google and the DOJ are still not disentangled. After the initial suit filed against Google for its exclusionary practices under the Trump administration, the Biden administration filed its own suit in January 2023. This second case deals with the market dominance of Google in the advertising sector. This makes Google’s stake in winning this first case all the more important because they hope to leverage that against new claims by the U.S. government if it does eventually go to trial. All in all, the future of Google is uncertain as it battles all kinds of claims from the DOJ. The one thing that’s certain, though, is the indisputable significance of these cases. Decades from now, United States v. Google will unarguably be considered a landmark case, much like United States v. Microsoft, with implications for the entire tech industry.
Sources & Further Reading