This week, Google and the Justice Department (DOJ) face off with opening statements in the remedies phase of the government’s online search monopolization lawsuit against the company. In a court decision last year, Judge Amit Mehta concluded that Google violated U.S. antitrust laws by entering into distribution agreements that established Google as the default search engine for third-party web browsers and mobile devices. Now, the court must decide on the appropriate remedies to be imposed on Google.
The government’s proposed remedies could have far-reaching consequences for consumers and the broader economy. This mixed bag of behavioral and structural remedies include requiring that:
- Google divest its Chrome browser and Android operating system, along with any assets or services necessary to successfully complete the divestiture;
- Google be prohibited from requiring or incentivizing companies to make Google Search the default search engine;
- Google provide a choice screen on Android and Chrome (before they are divested), allowing users to select their preferred search engine upon first use;
- Google provide advertising data access to third parties; and
- Google seek authorization before new investments in AI or Search.
Although the government argues that these remedies would improve competition by giving rivals “access to a significant number of search queries to help compete with Google,” they ignore the evidence of an already highly competitive market. Moreover, these proposals go far beyond Judge Mehta’s ruling. In fact, of the proposed remedies, only one directly relates to the court’s finding of Google maintaining its search monopoly through its exclusive distribution agreements.
Not only do the government’s proposed remedies go far beyond the court’s decision, they also overlook consumers. As was noted in the court’s decision, consumers have indicated time and again that they prefer Google Search because of its higher quality and accuracy. Instead, the DOJ seems to be more interested in picking winners and losers by boosting less innovative competitors who would benefit from Google’s innovations in a highly dynamic online search market. As I previously discussed here, competition law should be about protecting competition, not competitors.
Remedies are an important part of antitrust enforcement, but to be effective, they need to be targeted to the specific competition concerns, addressing the proven harm. The government’s case focused on the default search agreements that Google entered into with browsers and mobile device manufacturers. Claiming now that Chrome is a material cause of Google’s search monopoly seems far-fetched. On Monday, the DOJ once again had a tough time articulating how Google’s conduct meets the causation threshold for these structural remedies. By arguing for breaking up Google through divestitures of Chrome and Android, the DOJ failed to articulate how these remedies would result in addressing the perceived lack of competition in the online search market.
As Google highlighted in its opening remarks on Monday, there are significant concerns regarding user privacy, as well as national and cybersecurity concerns, that stem from the government’s scheme of mandatory data sharing with rivals. This is particularly important when considering how many of the third parties that could access this sensitive search information are potentially foreign rivals.
In addition, the DOJ seeks to prevent Google from attaining a hypothetical monopoly in AI, proposing that the company be forced to obtain special government approval any time it wants to further innovate in AI. In actuality, this merely underscores the major flaws in the government’s proposed remedies: not only does this proposal ignore market realities, but it seeks to prevent competitive harm where none is found, penalizing a company for being “too successful,” and undermining American competitiveness against foreign adversaries.
As Judge Mehta weighs the merits of the proposed remedies, his own observation that Google attained its current status lawfully, through innovating and providing the best option for consumers in online search, bears repeating. Any remedy that goes beyond addressing the identified competitive harms risks stifling innovation, reducing investment, and ultimately leaving consumers worse off.