The DOJ’s case, which is joined by eleven state attorneys general, argued that Google closed off competition by securing exclusive deals with tech platforms.
By Inyoung Choi
The landmark antitrust trial between the Justice Department and Google wraps up its first week of testimony Friday, with both sides presenting their initial arguments centered on the company’s dominance of internet search.
At issue: Is Google really that good, or has it used its size and power to create an unfair playing field?
The trial, the first in decades between the DOJ and a major technology company, is being closely watched for what it could mean for future antitrust cases and the technology industry.
“It will affect a lot of other cases as well and whether we can really use the antitrust laws to rein in Big Tech,” said Kathleen Bradish, acting president of the American Antitrust Institute, an organization that advocates for antitrust enforcement and has filed a brief with the court supporting the plaintiff’s case.
The trial is expected to span the next 10 weeks with a number of tech executives likely taking the stand, CNBC reported.
In opening statements Tuesday, the DOJ argued that Google started illegally maintaining a monopoly in the search engine space as early as 2010, according to Reuters. The DOJ’s case, which is joined by eleven state attorneys general, argued that Google closed off competition by securing exclusive deals with major tech platforms (including Apple’s iPhone and web browsers like Safari) or via its owned-and-operated properties (the Google Chrome web browser), according to its initial complaint filed in October 2020.
“Defaults are powerful, scale matters,” said Kenneth Dintzer, who is spearheading the DOJ’s case on this trial, according to Reuters.
The DOJ claimed the tech giant spends more than $10 billion annually to situate itself as the default search engine on devices, The Associated Press reported.
“Google’s contracts ensure that rivals cannot match the search quality ad monetization, especially on phones,” Dintzer said, according to the AP.
Google, on the other hand, says its search dominance is a result of success in market competition.
The tech giant’s lead attorney on this case, John Schmidtlein, argued Tuesday that Google defeated its competitor Bing “at every critical juncture,” according to the AP. Schmidtlein spotlighted the abundance of options available to consumers today in a “few easy clicks” when looking up information, according to Reuters, arguing that Google’s dominance is a reflection of consumer choice in the market.
This is the United States’ largest antitrust trial on a major tech company to take place in decades.
While years apart, many, including the DOJ, have compared this trial to the landmark U.S. v. Microsoft Corp. case in 1998, where the DOJ alleged that the tech company illegally maintained a monopoly on personal computers.
“Almost 20 years ago, the D.C. Circuit in United States v. Microsoft recognized that anticompetitive agreements by a high-tech monopolist shutting off effective distribution channels for rivals … were exclusionary and unlawful under Section 2 of the Sherman Act,” the DOJ wrote in its complaint against Google.
At the time, the government and Microsoft ultimately reached a settlement of five years, where the tech company was required to avoid exclusive deals that could be anti-competitive and publicly disclose pricing schemes for computer-makers.
Google, which recently celebrated its 25th birthday, was only in its infancy when the lawsuit against Microsoft took place. Today, Google’s search engine accounts for 90% of online searches worldwide.
“Back then, Google claimed Microsoft’s practices were anticompetitive, and yet, now, Google deploys the same playbook to sustain its own monopolies,” the DOJ alleged in its complaint against the search engine.
The DOJ’s case comes as some U.S. lawmakers have called to rein in tech companies. In July, Sen. Elizabeth Warren, D-Mass., and Sen. Lindsey Graham, R-S.C., introduced a new bill to create a bipartisan commission to regulate Big Tech. In February, President Joe Biden called on lawmakers to pass a law that would “strengthen antitrust enforcement” on tech platforms.
“The Microsoft case is one case and it’s 20 years old. So it’s really important to have something newer, something that reflects the current tech environment,” Bradish said.
Even so, when it comes to antitrust, the U.S. has fallen behind the European Union in regulating Big Tech, said Erika Douglas, an associate professor of law at Temple University whose research focuses on legal theory’s application to new technology. Most recently, the E.U. targeted six major tech companies it defines as “gatekeepers” to comply with new rules that aim to regulate the digital market.
“It’s the first U.S. case of this magnitude where there are really serious allegations against a very large technology giant,” Douglas said. “There’s a lot of potential to set interesting precedent in this case.”
At the same time, some remain skeptical of what the DOJ will be able to do to resolve the situation in actuality even if the presiding judge, Amit Mehta, finds Google illegally maintains a monopoly.
“The focus of the DOJ complaints here strikes me as an overreach with respect to the antitrust laws,” said Bilal Sayyed, a senior competition counsel for TechFreedom, a think tank that advocates for technological progress. “I think people will use Google search capabilities, regardless of whether they are the default on some platforms.”