Which search engine do you use, and why is it Google? A judge will soon decide.
The first big trial of the modern Big Tech antitrust movement is here: On September 12, the Department of Justice’s lawsuit against Google’s search engine monopoly began. What’s at stake? Oh, nothing much — just the future of the internet. Or maybe the future of antitrust law in the US. Maybe both.
This is the first antitrust trial that goes after a Big Tech company’s business practices since the DOJ took on Microsoft in the late ’90s, and it’s the first in a set of antitrust lawsuits against dominant tech platforms from federal and state antitrust enforcers that will play out in the next few months. Those include the DOJ and state attorneys general’s lawsuits against Google over its ad tech business, the FTC’s case against Meta over its acquisitions of Instagram and WhatsApp, and the FTC’s lawsuit against Amazon over its marketplace platform. Apple might even catch a lawsuit, too. The outcomes of these cases, starting with this one, will tell us if our antitrust laws, written decades before the internet existed and tried before an increasingly business-friendly justice system, can be applied to dominant digital platforms’ business practices now.
“If the DOJ loses, it becomes a very serious question of what’s it going to take,” Harold Feld, senior vice president at Public Knowledge, an open internet advocacy group, said. “Other than an act of Congress, is there any way that a court is going to apply the antitrust laws to these new business models and new technologies?”
That is to say, this case may change how much power those platforms have over us and how they’re allowed to wield it. And it all boils down to a simple question: Which search engine do you use, and why?
The first part of this isn’t in dispute. If you’re like 90 percent of Americans, it’s Google, which has been synonymous with internet search for decades. The “why” is where the fight is. Google says it’s because it’s the best search engine out there. The DOJ and attorneys general from almost every state and territory in the country say it’s because Google pays a host of companies — everyone from Apple to Verizon — billions of dollars a year to make its search the default on the vast majority of devices and browsers.
Most of us probably take search engines for granted at this point, but they’re still a hugely important part of how the internet works. The proof is Google, which in just 25 years has grown into a $1.7 trillion company that owns major swathes of what we do online. It was all built on that search engine, which remains Google’s biggest revenue generator even now. Search ads were nearly 60 percent of the company’s revenue in 2022, to the tune of $162.45 billion. And that doesn’t count all the other ways Google can and does monetize its exclusive knowledge of what most of the world wants to know all the time.
Ironically enough, it was another tech company’s antitrust woes that helped Google emerge in the first place: Microsoft.
Remember Internet Explorer? The DOJ sure does.
A few decades ago, your internet experience almost certainly began with Microsoft’s Internet Explorer, as was the case for up to 95 percent of internet users when the browser was at its early 2000s peak. But that market share didn’t happen because Internet Explorer was better, the DOJ contended in its 1998 antitrust lawsuit against the company. It was because Microsoft leveraged its dominance over computer operating systems to force its browser onto users.
Internet Explorer was bundled with Microsoft’s Windows operating system, and Microsoft ensured it was just about impossible to remove. Installing an alternate browser was technically possible but difficult, so most people didn’t bother. This killed off most of Internet Explorer’s competitors and gave Microsoft a monopoly over internet browsers that was similar to the one it enjoyed over computer operating systems. And that, the DOJ said, was an abuse of Microsoft’s monopoly power.
The US District Court for the District of Columbia agreed and ordered Microsoft to be broken up into two companies. But a higher court overturned part of that ruling, and the DOJ subsequently settled with Microsoft. The company got to stay in one piece, but it paid a price. While Microsoft was tied up in court, paying billions in fines, afraid to make any major moves that could incur more government wrath and no longer allowed to gatekeep the internet through its browser, new companies like Google emerged.
Now, the DOJ says, the cycle is repeating. But Google is the one that is using its dominance to freeze out competitors, and consumers are being denied the kind of innovation that put Google on the map in the first place.
“If the government’s allegations are to be believed, Google is doing exactly what Microsoft did in many respects,” said Gary Reback, an antitrust lawyer who was instrumental in convincing the DOJ to bring the case against Microsoft back then and tried to get the FTC to take Google on 10 years ago. “The major arguments — I’ve seen them all before — they were made by Microsoft, and they failed.”
The DOJ’s lawsuit was filed in October 2020, at the very end of Trump’s presidency and when anti-Big Tech sentiment was high and bipartisan. It came just a few weeks after the House’s long investigation into Amazon, Apple, Google, and Meta’s business practices, which led to a set of bipartisan, bicameral antitrust bills meant to address the unique ways digital platforms operate and maintain their dominance. Eleven states joined that suit; three more signed on a few months later. In December 2020, 35 states, the territories of Puerto Rico and Guam, and Washington, DC, filed their own lawsuit against Google over its search practices. Those two cases have been combined for this trial.
Microsoft has a place in this lawsuit, too, by the way: This time, it’s as a witness for the government. CEO Satya Nadella testified on October 2 that Google’s dominance has made it impossible for his company’s search engine, Bing, to truly compete — even as Microsoft has invested about $100 billion into its search engine to try. He said his company has tried to negotiate with Apple for years to break up its “oligopolistic” relationship with Google, offering the iPhone maker tens of billions of dollars to switch the search default from Google to Bing.
“Defaults are the only thing that matter,” Nadella said.
Apple, obviously, didn’t bite. Google’s argument is that Bing just isn’t as good as Google is. Even Windows users who have Microsoft’s Edge browser with its Bing default pre-installed prefer Google to Bing (though Bing’s market share is bigger on Windows PCs than it is elsewhere), and, as Nadella admitted, the most queried word on Bing is “Google.” Apple, Google says, is choosing the search engine it thinks is best for its customers — not the one that happens to pay it the most.
This isn’t to be confused with all the other antitrust lawsuits the government has filed against Google that address other parts of its business. One of those, about Google’s app store, was recently settled. Two others about Google’s ad tech business are winding their way through the courts. Here, we’re just looking at Google’s search arm, which is the foundation of the company but far from the only thing it does.
There are also a few things you won’t see in this case that used to be there. A few weeks ago, Judge Mehta threw out several of the plaintiffs’ claims. The states’ argument that Google harmed competitors like Yelp and Expedia by designing its search results to prominently feature its own services over theirs was tossed. The DOJ’s claims that Google’s agreements with manufacturers to give its services default placement on Androids and Internet of Things devices were exclusionary were also dismissed.
So we’re left with two claims. One is from the states’ case about Google’s search engine marketing tool, and it accuses the company of making certain features available to its search engine and not Microsoft’s Bing in order to give it an unfair advantage. But the core of this case is the second claim about Google’s default search agreements.
How Google’s default search agreements hurt you — or help
With so much of its revenue riding on the popularity and scale of its search product, Google is willing to spend a lot of money to ensure that it’s the default search in as many places as possible. The company shells out billions of dollars every year to browser developers, device manufacturers, and phone carriers for Google to be the default search engine almost everywhere. The exact amounts of those default search agreements have been redacted for this trial, but estimates put it at as much as $20 billion a year to Apple alone.
This paid placement, the DOJ says, has helped Google maintain its dominance and made it impossible for just about anyone else to compete. Very few companies have billions of dollars to throw around. Or, as the DOJ said, it’s “creating a continuous and self-reinforcing cycle of monopolization.”
And while it’s possible for users to switch to a different search engine, very few of them actually do. The DOJ is expected to say that’s because Google has locked up the best distribution channels. Using a competitor requires knowing that it’s even possible to do it in the first place as well as how to make the switch. There are also countless studies that will tell you how difficult it is to overcome consumer inertia. The vast majority of people just go with whatever’s there, which is why Google is paying to be there. Microsoft’s defense that people could install alternate browsers if they so chose didn’t work 25 years ago. The DOJ doesn’t think it should work now.
All this has hurt competitors, who can’t get a foothold in the market, according to the DOJ. It has impacted advertisers, who have to pay what Google is charging for those search ads because there’s no other game in town, and consumers, who don’t have much choice in search engines.
The lack of choice is also, the suit says, stifling innovation. There’s no pressure on Google to improve its product because there aren’t any companies trying to develop their own, possibly better, ones. The DOJ will likely argue that the quality of Google’s product has gone down as its dominance became more entrenched. One example could be all of those knowledge panels Google sticks on top of search results that direct users to other Google products, not to mention the presence of more and more search ads. The states’ case that this harmed third parties like Yelp was thrown out, but the DOJ could still say that it harms consumers who have to do more work to get to the search results they came to Google for in the first place.
There are other search engines, but they’ve struggled to gain market share. The aforementioned Bing currently has just 6.4 percent of the US market (Yahoo!, which uses Bing, is another 2.4 percent). There’s also DuckDuckGo, which has been trying to compete with Google as a privacy-preserving alternative. But it only has a fraction of the market, and it blames Google’s default search agreements for that.
“Even though DuckDuckGo provides something extremely valuable that people want and Google won’t provide — real privacy — Google makes it unduly difficult to use DuckDuckGo by default. We’re glad this issue is finally going to have its day in court,” Kamyl Bazbaz, spokesperson for DuckDuckGo, said in a statement.
DuckDuckGo, obviously, is an existing product. This case is also very much about the search engines that don’t exist and never will, the ones that you, the consumer, will never get to use. The DOJ will likely argue that’s because Google intentionally made the search engine barrier to entry too high. The co-founder of now-defunct search engine Neeva recently testified that his company, which had a subscription model rather than ad-based, couldn’t get the traction it needed in the face of Google’s monopoly.
For its part, Google maintains that it’s the most popular search engine because it’s the best one out there, giving its users the most meaningful and relevant results. The company says that the DOJ’s case is aimed at helping competitors — not consumers.
Google says the companies that choose its search to be the default on their products do so because it’s better, not because Google is paying them. And consumers use Google because it’s better, not because it happens to be there when they turn their new phones on or fire up their new computer’s browser for the first time.
“People don’t use Google because they have to — they use it because they want to,” Kent Walker, Google’s president of global affairs, said in a blog post. “Making it easier for people to get the products they want benefits consumers and is supported by American antitrust law.”
But why, you might ask, is Google paying anyone at all if it’s so great? Well, the company has long maintained that this is equivalent to a brand paying a grocery store for prime shelf space, something that is perfectly legal and happens all the time. (People who disagree with this will point out that occupying the only search engine slot on the vast majority of web browsers and devices is not quite the same thing as sitting on a shelf in a grocery store.) Google thinks it’s improving customer access to what it believes is the best product. And that, Google says, is good for consumers.
Google also says it’s easy to switch to a different search engine — much easier, in fact, than it was to install a new browser back in the Microsoft lawsuit days. Apps can be downloaded in seconds, and it takes just a few clicks to change your search engine settings, as long as you know it’s possible and how to do it.
“While default settings matter (that’s why we bid for them), they’re easy to change. People can and do switch,” Walker said.
Google also says it’s continuously improving and innovating. Any perceived lack of competition (and the company says it has plenty of competition) hasn’t caused it to rest on its laurels.
“We invest billions of dollars in R&D and make thousands of quality improvements to Search every year to ensure we’re delivering the most helpful results,” Walker said.
Finally, Google has maintained that the market is more than just general search engines like Bing or DuckDuckGo, because general search engines aren’t the only way people look for things on the internet. They may also go directly to Reddit or Amazon, for example. So it has more competitors than the DOJ claims as well as a smaller market share. That’s probably not going to fly with the judge, but Google will give it a try anyway.
The future of the internet, as determined by a business-friendly justice system
As Reback says, we saw many of these concepts litigated with the Microsoft case nearly three decades ago. So we should have case law that says some of the same or very similar practices Google is engaged in are illegal, right? Not necessarily.
Google has a few things going for it here. For one, it’s been more careful about how it phrases and frames things in internal documents than Microsoft was (assuming those internal documents exist — the DOJ has accused Google of withholding or destroying some of them). For another, the courts that will ultimately decide how to apply the law are different, too.
“Since Microsoft, there’s been a couple of Supreme Court decisions that are, by their attitude and their approach, tolerant of dominant firm behavior,” William Kovacic, who served as the chair of the FTC under George W. Bush, said. “Their attitude toward plaintiffs is not nearly so generous as the Court of Appeals was in the Microsoft case.”
No matter what the judge decides, it will be a while before we know the final outcome. The trial is expected to last about nine weeks, and Judge Mehta’s ruling won’t come out until next year. We’re sure to have a long appeals process after that. But whatever the outcome is, it may be hugely consequential, especially when viewed in combination with the other digital platform antitrust cases we have now (or likely will have soon) and the larger antitrust reform movement.
If Google loses, it faces the possibility of being broken up into smaller companies (an extreme, but not unheard of, measure that the DOJ is asking for) or forbidden from offering those search agreements. We could be looking at a much different Google, or we’ll get to see which search engine users pick when Google is not the default.
If the DOJ loses, there are a few ways to look at it. One is that this is proof that Google isn’t doing anything wrong and should be allowed to continue to operate as it always has, without being unfairly targeted by the government with its anti-Big Tech agenda.
But if you believe that Google and its Big Tech brethren’s dominance and power is a problem that needs to be solved, a DOJ loss would show that our antitrust laws and the courts that are charged with interpreting them aren’t equipped to deal with the realities of this digital economy and how its major players operate within it.
“If the government gets the door slammed on its face ... if they try and they lose, then they can turn to Congress and say, ‘Well, our antitrust system is so cramped and limited that we can’t do the job. You’ve got to fix it,’” Kovacic said.
That could be what motivates Congress to pass antitrust laws that do account for dominant digital platforms. An internet that’s essentially controlled by a handful of companies may well open back up again — assuming it isn’t already too late.
Update, October 3, noon: This story was originally published on September 9 and has been updated to include testimony from Microsoft CEO Satya Nadella and Neeva’s co-founder.
0 Comments