Google’s Justice Department trial could test the future of antitrust law

When’s the last time you used DuckDuckGo or Bing to search the internet? Yeah, that’s no accident, according to the U.S. federal government as well as several states.

Next week, an antitrust case they filed against Google goes to trial. The original complaint [filed in 2020] notes Google accounted for almost 90% of all search queries in the U.S.

And Googling only got us so far on this one, so Marketplace’s Lily Jamali called on Rebecca Allensworth, an antitrust lawyer and law professor at Vanderbilt. The following is an edited transcript of their conversation.

Rebecca Allensworth: The government is arguing that the massive dominance that Google has in the search market is being protected by some contracts that they have, especially with Android and with Apple, that makes it very hard for any competitors, like DuckDuckGo or Bing, to get in front of enough users to have economies of scale to compete.

Lily Jamali: And what has Google’s response been to these allegations?

Allensworth: Well, they have kind of two responses. One is to say, competition is just a click away; these are not exclusive dealing contracts, really, they’re just defaults, but you can reconfigure that to choose your own search engine. And so really, consumers have choice. The other thing they’re gonna say is, we are big, we are dominant, because we’re the best, you know, we won the competition, and you shouldn’t turn on the winner of the competition.

Jamali: So what’s your read on these arguments? Do you buy them?

Allensworth: Not really. I mean, if indeed, Google was confident about their ability, not just to be the best search engine, but to be the best search engine when also facing real competition from other possible search engines, then they wouldn’t be having to pay billions of dollars to companies like Apple to remain the default. And there’s a case called [U.S. v Microsoft] that says that defaults really matter. And so this idea that competition is just a click away is something that we know from experience isn’t really true. Defaults are very sticky, and very powerful. And there’s law on the books saying that you don’t have to have true exclusive dealing in order to be seen as an exclusive contract.

Jamali: So let’s take a step back: the federal government first sued Google on search in 2020, right?

Allensworth: That’s right.

Jamali: And what has transpired in this case in the intervening three years?

Allensworth: So a lot has happened. I mean, some people looking from the outside might say, three years, that’s so slow. And it is and that is a concern. But the reason why it’s so slow is because there’s so much that’s gone on. So the DOJ filed this suit, and then a bunch of states joined in. States brought new claims, and then all of those claims went through discovery, which is the process by which the parties learn information from the two sides. And then there was this motion for summary judgment. And summary judgment is like a pre-trial disposition of the case, where the judge says, this isn’t even close enough for me to take it to trial. And that whole process led to the claims being significantly narrowed, essentially, to the one we just talked about.

Jamali: I keep seeing this case being referred to as the most important antitrust case since the government sued Microsoft in 1998. That, of course, is the case you just mentioned a moment ago. Does that characterization sound about right to you?

Allensworth: I think it does in terms of what has gone to trial. I think that there’s some other cases out there that haven’t gone to trial yet, especially the FTC’s case against what was Facebook and now has turned into a case against Meta, that I would put on that list. But as far as going to trial, yes. And the other reason why people are invoking Microsoft, is the similarity of the claims. So this is the most important trial in antitrust since — I mean, that case was decided in 2001.

Jamali: Yeah, and what are the similarities? I mean, even the language in the Microsoft case, some of it is remarkably similar to the language that we’re seeing here. Describe to me how close these cases are as somebody who knows this space so well.

Allensworth: So I joke with my colleagues that the government’s complaint in this case looks like they took the Microsoft case and just “CTRL + F” for “Microsoft” and put in “Google.” They were really following a playbook. And I think that makes a lot of sense, because, at least on the law, the government won in the Microsoft case. And the facts are very similar. You have a big tech platform that is trying to stop other competitors by being sure that it’s the default. And they could anticipate that they would make similar arguments about “competition is just a click away.” And then in the case of Microsoft, it was “well, you can mail order Netscape Navigator on CD ROM” — you know, the technology was different, obviously. And so in that sense, it’s very, very similar. There was a recognition even back in the late 90s, that defaults are very sticky. What shows up on consumers’ devices is what they will use, and that at the core is the theory of the case.

Jamali: The government won, as you say, in the Microsoft case, but did that case mark a meaningful shift when it comes to antitrust, ultimately?

Allensworth: Well, yes and no. There’s dispute about this. The conventional wisdom is: the government won on the law and lost on the remedy. The remedy was seen as relatively weak, and Netscape didn’t survive. Netscape didn’t survive in part because of how long it took for that case to come through. You said it was in the late 90s that it was brought, and it wasn’t decided until 2001. Obviously, we’re seeing the same delay in this case. So it didn’t restore competition to that market. But it did send a signal. And I think the question is: this case today, that’s happening next week, is really going to tell us whether or not that case is still viable, Microsoft is still a viable threat, I guess, to tech platforms.

Jamali: Given your track record in antitrust law, I’m really curious to know what you think is at stake here.

Allensworth: So I think the biggest thing at stake is that question of whether or not Microsoft, as a case, as law, as antitrust law is going to live up to its promise of holding tech platforms to the competition laws. I think a lot of scholars like me have been saying for years that Microsoft presents a kind of blueprint for how we might restore competition to big tech. Also, just in general, there’s going to be some factual findings that will apply to a lot of tech companies; for example, how do we think about competition in a market where consumers don’t seem to pay in dollars and cents for the product? It will also tell us a lot about the law of defaults, which I think is very important for lots of tech companies today.

Jamali: So what are the stakes for consumers? What’s at stake for us, at least here in the U.S.?

Allensworth: Well, I think it’s easy for us to say “Google’s a great product, I can’t imagine my life without Google.” And what you’re really saying is “I can’t imagine my life without the internet.” And yes, it’s true that we’re better off being able to look up information quickly and easily. But that’s not really the question. The question is, would we be better off as consumers if there was more competition and more alternatives in this space? One thing I don’t like about Google is I always go on there looking for information, but what I get are products for sale. And that’s because that’s the most lucrative way to present it to me, but it’s a cost to me — I have to wade through all this information about stuff that I don’t want to buy. What if we had a competitive market where there was a real alternative to Google that costs me less in terms of attention, and was a little bit more elegant to use to get to the information that I wanted? And that requires some imagination, and I think that’s what antitrust is trying to do.

Jamali: And how much of big tech’s overall business practices, and overall market power, do you think stem from how long the leash many of these companies had early in their histories?

Allensworth: I think that’s a huge problem. I think that there was a real reticence in the first decade, let’s say, of the tech platforms’ development to go after them. I think that was political. I think it was also the idea that tech can kind of do no wrong, these are great, innovative products. And the real shame about that is that so much of their power comes from being the first mover. And once that monopoly is established, it’s really hard to topple it. So I do think that laxed enforcement is a huge part of this.

Jamali: So this trial is expected to take somewhere around two-and-a-half months. What are you going to be watching for as it all plays out?

Allensworth: You know, Google has not, so far, disputed the fact that it has monopoly power. And I’m curious to see whether or not they’re going to stick with that strategy, or if they’re going to say, actually we do have competitors and the market isn’t just us. I’ll also be really interested in something the judge said in his decision, saying, I’m allowing this to go to trial, but I’m rejecting the idea that I’m supposed to look at this holistically. Of course, I’ll look at all the anticompetitive things holistically. But first, I need to decide that each individual act by itself is anticompetitive. I think that’s a real problem for the plaintiffs. I think they wanted the judge to look at the whole, overall picture. And so I’m kind of curious what that will mean in action.

More on this

The government antitrust case against Microsoft, filed in 1998, came up a couple of times throughout the conversation with Professor Allensworth. If you’re jonesing for more, to use a term we haven’t heard much since 1998, here’s a great piece from The Ringer that published on the 20th anniversary of the case.

It’s a roundtable discussion with lawyers and Microsoft competitors, as well as journalists who covered the story in real time. To bring things full circle, we’ll share this quote from a Netscape attorney who told The Ringer: “because of antitrust enforcement, that’s why we have Google. There is no other reason.”

Google provided the following comment to “Marketplace Tech:”

“This is a backwards-looking case at a time of unprecedented innovation, including breakthroughs in AI, new apps and new services, all of which are creating more competition and more options for people than ever before. People don’t use Google because they have to –- they use it because they want to. It’s easy to switch your default search engine –- we’re long past the era of dial-up internet and CD-ROMs. Our success is hard fought, and the result of our focus on building services that help Americans every day. We look forward to making our case in court.”