News

Geoff Bennett:

Starting tomorrow, the U.S. Justice Department’s monopoly case against Google will go to trial for what’s widely considered the biggest antitrust trial of the modern digital era. Google is the undisputed giant when it comes to searching the Web. More than 90 percent of searches start with Google.

The fundamental question in this trial centers on whether Google stifled competition and harmed consumers by becoming the default search engine through deals with phone makers and Internet browsers.

We’re going to preview the key arguments in this case and take a look at what’s at stake with two people who are closely watching it.

Cecilia Kang covers technology for The New York Times. And Rebecca Allensworth specializes in antitrust. She’s also a professor at the Vanderbilt Law School.

Welcome to you both.

So, Cecilia, this is the biggest monopoly tech trial since the DOJ sued Microsoft some 20 years ago. What’s the issue?

Cecilia Kang, The New York Times:

Well, at issue is whether Google, which is a monopoly in search, the Justice Department will assert, whether it actually maintained its monopoly through illegal means.

And the Justice Department will specifically argue that it did not keep its monopoly, did not cement its monopoly power through the great innovations of its search engine, but through these business deals that were exclusive contracts that made its search engine the default, effectively making it very, very difficult or impossible for any competitive search engines to thrive.

Geoff Bennett:

And at stake in this trial, Rebecca, is a chance for the DOJ to prove that it can bring a successful anti-monopoly case in this modern digital era.

You have read the government’s arguments to this point. What’s their case?

Rebecca Allensworth, Vanderbilt Law School:

Their case is that Google is big, not just because it’s great, but Google is big because they have cut off other avenues that their competitors would take to get in front of consumers, namely, by having exclusive dealing contracts or de facto exclusive dealing contracts.

That, under American antitrust law, could add up to a bad act, which is necessary in order to be found guilty of monopolization. That’s one element. And the other element is just that you are a monopolist.

Geoff Bennett:

And how has Google responded, Cecilia?

Because if they own 90 percent of the search traffic, it’s hard for them to argue that they’re not a monopoly.

Cecilia Kang:

So, Google will focus on definitions of what the market is and what really is searched.

They’re going to say, look, we are that bar that of you know on that blank page with the Google logo on it. But there are so many ways that consumers search these days. They search for retail items on Amazon. They search for songs on Spotify. They search for all kinds of — they search for people and entertainment on TikTok.

They’re going to argue that the definitions of what is search is much broader. And they’re going to argue that consumers like their products and that these contracts, very importantly, that they have struck with Apple, Firefox, Samsung and other companies to make their search engine the default are actually not exclusive, they’re not complete blocks on consumers finding other search engines.

Geoff Bennett:

Rebecca, Google, as you know, has already faced major fines over its competitive practices in Europe. It also faces a separate challenge from the DOJ over its advertising technology business.

If Google loses this case, this search case, what’s the practical impact?

Rebecca Allensworth:

Well, there’s impact on Google, for sure, but the impact I’m most interested in is on antitrust law.

This case most resembles the Microsoft case that the Department of Justice brought 20 years ago. And I think the real critical question in this case is, has that case survived as a precedent, as a blueprint for bringing big tech to heel? I think that companies like Meta and Amazon are going to be looking very closely at this case. And so that matters to me a lot, the law.

As far as what it will matter to Google, the relief here, if the government wins, is not going to be fines, likely. It’s mostly going to be injunctive relief. They’re going to say, if these contracts violate the antitrust laws, you can’t have contracts like this.

And I think that could open up some competitive space for other search engines to enter.

Geoff Bennett:

Antitrust trials are long. It’s a long process. And even if Google is found liable at this stage, there could be another separate proceeding to determine the best outcome in terms of resolving the case.

What are you watching for, Cecilia, as this case progresses?

Cecilia Kang:

Well, I’m definitely watching to see whether the judge listens and accepts some of the arguments on a market definition and whether these contracts that Google had with these partners in business were indeed exclusionary and anti-competitive and, therefore, violations of antitrust law.

As far as what happens, the remedies, what’s known as sort of the punishment that Google could face, it’s early to say, but these kinds of cases and what the government actually tried to do with Microsoft two decades ago was pretty extreme. It tried to seek a breakup of Microsoft.

Of course, that case settled and there was no breakup, but that is the potential. There’s potential that the government can ask that Google stop certain business practices. And, in the most extreme version of remedies, it could ask for some sort of divestitures or breakup.

Geoff Bennett:

Rebecca, there’s the question of, why now?

Google’s competitors have long accused it of brandishing its power to suppress competitors’ links to travel, to maps, to reviews, that sort of thing. There’s been some regulatory investigations, but no major action at this level.

Why not?

Rebecca Allensworth:

The answer to that question has two parts. The first is that it’s a different administration.

Now, of course, it started with the Trump administration in 2020. But another part of the answer is that this behavior kind of all adds up. And this is another thing I’m watching for in this trial. The judge said in his decision this summer that: I don’t have to look at everything all together. I can look at each thing individually and say, does that violate the antitrust laws?

And I think that that’s not quite the right way of looking at it. And I’m curious what he means, because, certainly, part of the conduct that’s disputed here is the sum of its parts. It’s all the things it’s been doing over the last 10 years.

Geoff Bennett:

Cecilia, what’s your assessment? Are we in a new era of antitrust enforcement?

Cecilia Kang:

Well, absolutely.

In terms of the regulatory approach that this administration and the past administration has taken, as well as what we’re seeing wind through the courts with these lawsuits, and this one that’s the first to go to trial, we’re seeing a real focus on weakening the grip of big tech on the economy and certain sectors of the economy, especially on the Internet.

So, this is a new era. What the result will be will have potentially vast consequences on innovation, on how much data these companies can collect, which is a key to their future in A.I. and other new technologies.

So this is not just about the current marketplace, but this is very much about the future of technology as well.

Geoff Bennett:

Cecilia Kang covers technology for The New York Times, and Rebecca Allensworth is a professor at Vanderbilt Law School.

My thanks to you both.

Rebecca Allensworth:

Thank you.