Why Google’s antitrust case is a critical test for Big Tech

Google and the federal government will face off in a trial next week that could reshape how the tech giant is structured and the future of antitrust enforcement against tech platforms. 

The trial is kicking off nearly three years after the Department of Justice (DOJ) and a coalition of states’ attorneys general filed the complaint. The suit alleges Google has an anticompetitive monopoly over the search market. 

It is the first major antitrust lawsuit against a major tech company since the U.S. sued Microsoft in the late-’90s. The Google case is shaping up to be a critical test for a new generation of dominant tech platforms amid years of mounting bipartisan scrutiny. 

“It’s the biggest monopolization case the United States has seen in a generation,” said Bill Baer, who served as assistant attorney general in charge of the DOJ antitrust division during the Obama administration.

Baer said the outcome of the Google trial will have “significant implications” for other dominant firms that rose to power over the past two decades.

“How do the rules of the road apply to these dominant firms? Even if they became dominant through legitimate behavior, are they staying dominant through misconduct that limits the opportunity of rivals to emerge and give consumers the benefit of a competitive marketplace?” Baer said. 

Why the DOJ says Google is harming consumers

The federal government alleges that Google is harming consumers by stifling innovation in online search tools and limiting choice. 

Google has maintained an illegal monopoly over online search through exclusive agreements that preinstall its search application on devices, the DOJ argued. This, the government alleges, allowed Google to become the dominant search engine over its rivals.

Federal prosecutors are likely to argue that Google is not allowing a free market of rivals who could offer search choices with better technical perks — such as the speed at which search results are presented — and on policy choices, such as more stringent data privacy practices.

“Google is now the unchallenged gateway to the internet for billions of users worldwide. As a consequence, countless advertisers must pay a toll to Google’s search advertising and general search text advertising monopolies; American consumers are forced to accept Google’s policies, privacy practices, and use of personal data; and new companies with innovative business models cannot emerge from Google’s long shadow,” the DOJ said in an amended complaint in January 2021. 

“For the sake of American consumers, advertisers, and all companies now reliant on the internet economy, the time has come to stop Google’s anticompetitive conduct and restore competition,” it continued. 

And as artificial intelligence (AI) technology ramps up, the DOJ may also argue that Google could leverage its market power into the new technology and further stifle innovation. 

Google denies allegations of anticompetitive behavior

Google has pushed back strongly on the allegations of anticompetitive behavior. 

The company argues that its products and services are more popular because they are simply better, not because Google has tilted the playing field away from potential rivals.

“We’re proud that browser makers opt to show Google Search based on the quality of our products,” Kent Walker, Google’s president of global affairs, said in a blog post Friday. 

Walker’s post cited comments from Apple CEO Tim Cook from 2018, who called Google’s search engine “the best,” while defending the deal making Google the default search option.

Google will also argue that its contracts to be default search engines on browsers are not exclusive and do not limit competition. The company argues that users can easily set a new default search engine and its contracts do not limit access to other search options.

“In short, our success comes down to the quality of our products, not the quantity of our contracts,” Walker said. 

Google plans to call some of its customers, including executives from tech giants like Apple, to testify about choosing their products and the agreements in question. 

Google will also share stories about the innovations the company has fostered, such as pivoting from desktop to mobile to make search more useful for the mobile world. 

Judge Amit Mehta has already narrowed the scope of claims that the government can focus on during the trial.

In a decision unsealed last month, Mehta tossed out allegations that Google has weakened competition by harming rival companies, such as Yelp or Expedia, by boosting its own products in search results. 

Walker touted that decision as an example of how the government’s case is “deeply flawed.”

What are the next steps in the case?

The DOJ and coalition of states are expected to take several weeks making their case against Google, after which the company will be allowed to present its defense.

The trial is expected to last 10 weeks and will be split into two distinct phases: The first will be whether the government successfully made the case that Google is an illegal monopoly, and the second will cover potential remedies.

Baer said the government could potentially propose breaking up Google or a prohibition on the types of agreements and payments the company can make to promote its search engine.

How the DOJ plans to limit Google’s influence could have serious implications for the broader tech sector, experts said.

“This is about opening up the ability to compete with Google on search,” said Katie Van Dyke, senior legal counsel at the American Economic Liberties Project (AELP), a nonprofit that supports stronger antitrust enforcement

The AELP has strongly supported the federal government’s case against Google and congressional proposals for broader antitrust reform. 

As the Google search case heads into trial, a separate DOJ case targeting the company’s dominance in the ad tech market is underway.

In addition to the Google cases, the government has been targeting the power of other tech giants. The Federal Trade Commission (FTC) is suing Meta, the parent company of Facebook, over its acquisitions of WhatsApp and Instagram. The FTC is also likely to sue Amazon later this month after a four-year investigation, Bloomberg reported. 

As the court cases move forward, supporters of antitrust reform are still trying to ramp up momentum for proposals they say would help improve competition in the tech industry. Efforts to pass key antitrust laws failed last Congress — despite bipartisan support in the House and Senate — and are less likely to move ahead in the House this year due to GOP leadership opposition.

Charlotte Slaiman, vice president at Public Knowledge, said antitrust laws should be updated to address self-preferencing, app store regulation and the creation of a new digital regulator. 

“These are all additional legislative solutions that are still going to be needed, even if the case is highly successful,” Slaiman said. 

Updated at 2:18 p.m. ET