This year, the U.S. Department of Justice went to court to prove Google's alleged illegal dominance of online search and search advertising markets. If Google is ultimately found guilty, figuring out how to fix the problem is a challenge some argue regulators haven't thought enough about.
In the DOJ's antitrust case against Google, the government alleges that Google leveraged exclusionary contracts with mobile phone companies and app operators including Verizon and Apple to make its search engine the default option over competitors. Indeed, during the trial, it was revealed that Google paid $26.3 billion to Apple and others in such contracts in 2021 alone. Google denied that the contracts were all that helped the company become dominant in the online search market, noting other factors such as product quality.
If the DOJ ultimately wins the case and Google is found guilty of anti-competitive conduct, the next question is how to remedy its anti-competitive behavior, according to experts speaking during an Information Technology and Innovation Foundation online panel discussion on Wednesday. Panelists raised concerns that the government hasn't thought far enough ahead on what it wants remedied.
Megan GrayFounder and CEO, GrayMatters Law and Policy
"I don't think the DOJ under Trump or Biden has thought about appropriate remedies in this case," said Megan Gray, founder and CEO of GrayMatters Law and Policy.
Setting the tone for remedies in a DOJ win
One of the first questions the DOJ needs to answer is "how would we define success," Gray said. Retribution, restoration and deterrence are only a handful of the many goals regulatory agencies could set for remedies in an antitrust case.
Gray said it will be difficult to "un-tip" Google's market power. But she said the government could consider how the next wave of AI-driven search engines might be able to compete.
Adam Kovacevich, founder and CEO of Chamber of Progress and a panelist, agreed that it's unclear how the government would address its concerns with Google's market dominance.
"One weird aspect of this case was ... I don't know that they thought a lot about remedies," he said.
Case hinges on contracts giving Google default status
After the trial concluded in November, Judge Amit Mehta set closing arguments for early May 2024 and noted that he was undecided on which way to rule in the case.
Whichever way Mehta rules will likely depend on the exclusionary agreements, which weren't necessarily exclusive of competition, said Thomas Lambert, a law professor at the University of Missouri and a panelist. He said that while the agreements made Google the default option, users could still switch to a different search option if they chose to do so. The burden falls on the DOJ to prove that the agreements prevented Google's rivals, such as Microsoft's Bing, from attaining the scale they needed to compete effectively with Google.
"I think the government is going to have problems convincing the judge on that," Lambert said.
Kovacevich echoed Lambert's point. He said the key standard is that the judge must find that the default deals played an outsize role in Google's dominance.
"I think that's going to be very difficult for him to do," Kovacevich said.
Gray, however, disagreed, saying she believes the biggest flaw with Google during the trial was avoiding answering why the company paid so much money to maintain default status.
"The judge is not going to have any problem concluding that the actual reason Google is paying so much money for these defaults ... is to build a moat and keep out rivals," she said.
Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget Editorial, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.