Georgetown Law
Technology Review

In its first major antitrust case against a tech giant since United States v. Microsoft in 2001, the U.S. Department of Justice (DOJ) filed suit against Google on October 20, 2020. The DOJ, along with eleven state attorneys general, accused the online goliath of maintaining a monopoly by stifling competition in its search and search advertising markets in violation of the Sherman Antitrust Act, 15 U.S.C § 2. The suit has been a long time coming, as the DOJ and almost all 50 states began their investigations into Google’s practices over a year ago.

The complaint alleges that Google has entered into exclusionary agreements with Apple, Android, and other mobile phone manufacturers, creating unlawfully maintained monopolies over the search market. These agreements include contracts that prohibit the preinstallation of competing search services and provide for Google search to be the default search engine on mobile devices and browsers. The DOJ argues that these practices suppress competition in the search and search advertising markets and harm consumers by impeding innovation and lessening consumer choice.

Google’s Senior Vice President of Global Affairs, Kent Walker, rejected the complaint, calling it “dubious” and maintaining that “people use Google because they choose to, not because they’re forced to.” Walker compared Google’s agreements with Apple and Android to cereal brands contracting with supermarkets to be placed on eye-level, stating that while Google does negotiate for eye-level shelf space, its competitors are still readily available for consumers who wish to use them.

Those who are familiar with the Microsoft case almost two decades ago may see some similarities with the current case against Google, but it is far from a mirror image. There are fewer smoking guns in Google’s case because Google learned from Microsoft’s mistakes and implemented internal policies to avoid language like “crush,” “kill,” “hurt,” or “block” when discussing competitors. Moreover, since Microsoft was settled in the government’s favor, new Supreme Court precedent narrows the acceptable grounds for monopoly cases and establishes that some markets can be separated, with merchants on one side and consumers on the other.

Although Google has faced a series of costly antitrust cases in Europe, almost a decade has passed since the last time Google was subject to serious antitrust inspection in the U.S. The company agreed to alter some of its business practices in 2013, after the Federal Trade Commission (FTC) raised concerns over its patent licensing practices. The FTC also mentioned issues with Google’s search advertising practices, but those were not addressed in the 2013 settlement, nor were they raised again by the FTC.

Recently, in addition to the DOJ’s complaint, Google and its fellow tech behemoths are facing scrutiny from Congress: the House Judiciary Committee’s Antitrust Subcommittee recently released its report on the state of competition in the digital marketplace after a 16-month independent investigation. Given the widespread complaints levied against Google and the length of time it has been under investigation, one may question why a case like this was not brought sooner in the U.S. The answer may lie in the current political landscape and the opportunity to capitalize on bringing such a significant lawsuit at this time.

In the months leading up to the complaint, a number of the DOJ antitrust lawyers appeared to deviate from U.S. Attorney General William Barr when he pressed them to file the lawsuit by the end of  September and they refused. Barr’s sense of urgency may have been associated with the windfall this suit could bring for the Trump administration in the weeks before the November election. Bringing a major antitrust case against a Silicon Valley “darling” could potentially amass support from both sides of the aisle, satisfying bipartisan support for regulating tech giants for a variety of reasons. Further, President Trump, who has frequently accused companies like Google and mainstream media outlets of having an “anti-conservative bias,” could be viewed as cracking down on a stronghold of the tech industry. The DOJ has denied any allegations that politics have influenced the timeline of this case.

Like Microsoft, this suit will likely drag on for years. While the outcome of November’s election may result in a new administration taking the case in a different direction, it is unlikely that it will be dropped altogether. Microsoft was a significant victory for government antitrust regulation in the early 2000s, but victory is not guaranteed over Google this time around. The administration that follows this case into maturity may have an uphill battle ahead of them.