Name: Antitrust Suit Against Google is a Watershed Moment
Brand: eff.org
SKU: eff-org-312
Availability: OnlineOnly

critic

Antitrust Suit Against Google is a Watershed Moment

preview

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItThe antitrust lawsuit against Google filed by the Department of Justice (DOJ) and eleven state attorneys general has the potential to be the most important competition case against a technology company since the DOJ’s 1998 suit against Microsoft. The is broad, covering Google’s power over search generally, along with . Instead of asking for money damages, the complaint asks for Google to be restructured and its illegal behavior restricted.This suit flows from investigations by the DOJ Antitrust Division that have . Although a large, bipartisan group of state attorneys general were reportedly working together on the investigation, just eleven states, all with Republican attorneys general, joined the suit. A group of Democratic-led states are a separate lawsuit.The DOJ and states raised three claims in their suit, all under Section 2 of the Sherman Antitrust Act, which prohibits acquiring or maintaining monopoly power through improper means. The lawsuit alleges that Google illegally maintains monopoly power in three markets: “general search services, search advertising, and general search text advertising.” In these markets, says the complaint, “Google aggressively uses its monopoly positions, and the money that flows from them, to continuously foreclose rivals and protect its monopolies.”Closely following the playbook of the antitrust suit filed in 1998, the suit against Google focuses on hardware vendors like Apple and Samsung, browser makers like Mozilla, Opera, and (again) Apple, and other technology companies whose products integrate with Google search or use Google’s Android operating system. These contracts, say the complaint, generally require technology companies to make Google the default search engine. In the case of devices that run Android, Google’s contracts also require vendors to include a bundle of Google apps (Gmail, Maps, YouTube). And vendors must agree not to modify Android in any significant way, even though the operating system is released under an open source license.Implicit in the DOJ’s complaint is the notion that Google uses its control over multiple products and services (including search, email, video, and operating systems) to maintain its monopoly over search. Because of Google’s contracts, competitors in search like DuckDuckGo will struggle to offer an alternative to Google search unless it can also offer a mobile operating system, an email client, and so on.Over the past several years, as the public and policymakers began looking to antitrust to rein in the biggest tech companies, there’s been plenty of concern about the difficulty of applying competition law to products that are free to the consumer. Over the years, U.S. regulators applying antitrust law have taken on a narrow focus on consumer prices, often finding that monopolistic behavior is OK as long as prices don’t rise. The DOJ’s complaint does a good job of getting around this hurdle while still focusing on harm to consumers. It alleges that as a monopolist in the “general search” market, Google “would be able to maintain quality below the level that would prevail in a competitive market.” Yes, consumers can get search for free, but they could get an if not for Google’s market power.The complaint also employs a strategy that EFF has long advocated: treating consumer privacy as , such that overcollection and misuse of customers’ personal information by a monopolist can be evidence of harm to consumer welfare, the touchstone of modern antitrust law. “Google’s conduct,” says the complaint, “has harmed consumers by reducing the quality of general search services (including dimensions such as privacy, data protection, and use of consumer data), lessening choice in general search services, and impeding innovation.”On the innovation angle, the complaint alleges that Google’s contracts deny potential search competitors the benefits of scale, which “affects a general search engine’s ability to deliver a quality search experience.” In other words, we would see more innovation in search engines if other entrepreneurs were able to compete with Google at scale.EFF and many other watchdog organizations have long argued that to change Big Tech practices. Any award of damages large enough to affect the future behavior of a company the size of Google (and its parent, Alphabet) would have to be far larger than even the largest antitrust damages ever awarded by a court. Otherwise, Google and its Big Tech brethren treat fines and damages as a necessary cost of doing business.The DOJ’s suit takes a different approach. Its complaint asks for “structural relief,” which means a breakup or restructuring of the company, and court orders to stop the anticompetitive practices described in the complaint, but no money damages. If the government can prove that Google violated the antitrust laws, choosing to forego money damages should help the court focus on crafting effective structural and conduct remedies.Many of the claims in the suit are built on the power of default settings: users are likely to stick with whatever search engine their devices are preconfigured to use, even if they can choose a different search engine. Google’s public messaging has challenged this principle for many years, arguing that “competition is only a click away.”In their first to the DOJ lawsuit, Google argues that “our competitors are readily available too, if you want to use them.” But according to the complaint, research shows that , especially on mobile devices.We’ve been . Microsoft raised a similar defense 20 years ago, arguing that its efforts to drive Windows users to its Internet Explorer browser were not illegal because users could install another browser at any time. The Court of Appeals for the DC Circuit treated Microsoft’s argument with skepticism, and its implied that default settings can be anticompetitive and form part of an antitrust violation.Still, most antitrust cases are decided on the “rule of reason,” meaning a balancing of pro-competitive and anti-competitive effects. We can expect to see heated arguments in this case about just how easy it is to use alternative search engines and what that means for the ability of competitors like DuckDuckGo to thrive.Three things are glaringly absent from the complaint. First, despite the efforts of some to paint the suit as Google's comeuppance for allegedly censoring conservative viewpoints, the complaint says nothing about ideological bias or censorship. That’s not surprising to antitrust attorneys, because the claims of bias simply don’t help to make an antitrust case. We hope those comments about the lawsuit don’t end up fueling a defense by Google that the suit is an attempt at partisan score-settling. This sort of clouded the DOJ’s ultimately unsuccessful effort to stop the merger of AT&amp;T and Time Warner.Second, the complaint doesn’t include any claims of monopoly abuse in web advertising markets or mobile operating systems. And it doesn’t specifically mention Google’s history of acquiring companies that could become serious competitors, including companies whose technology now powers Google’s search advertising. The government can still argue that Google’s acquisitions were part of its illegal monopoly maintenance, but the complaint suggests it’s not a major part of the case so far.Third, the government did not bring any claims under Section 1 of the Sherman Act, the well-known provision that bans any “contract, combination . . . or conspiracy in restraint of trade.” Since the suit focuses on Google’s contracts with hardware makers and others, we would expect the government to argue that those contracts were themselves illegal restraints, as well as contributing to a campaign of illegal monopoly maintenance. The absence of Section 1 claims in this suit is odd.Big Tech companies have been under scrutiny for years for being too big and too willing to wield market power in ways that are abusive or exacerbate existing problems. Unfair , outsized control over others' speech, and locking out new products by enforcing level are a few that come to mind. If this lawsuit is the best opportunity in a generation to hold Big Tech accountable, it may seem disappointing that none of these issues are addressed. But it shouldn’t be. Today’s antitrust law focuses narrowly on consumer welfare, often permitting monopoly abuses as long as they don’t lead to higher consumer prices in the short term.The DOJ’s suit is an attempt to show that Google’s practices have . If lawsuits are going to address other harms, Congress needs to act to return antitrust laws to their historic that harm workers, markets, competitors, and innovation. As the lawsuit continues, we’ll be to update our antitrust laws to address more of the harms of Big Tech monopolies.Share ItStop us if you’ve heard these: piracy is driving artists out of business. The reason they are starving is because no one pays for things, just illegally downloads them. . These arguments are old and being to get support for rules...In response to the very real pressures that online news outlets are facing, Congress continues to believe the very flawed Journalism Competition and Preservation Act (JCPA) is a magic solution. It is not. In fact, it is actively dangerous. And there’s a available....Much of what we do online involves reproducing copyrightable material, changing it, and/or making new works. Technically, pretty much every original tweet is copyrightable. And the vast majority of memes are based on copyrighted works. Your funny edits, mashups, and photoshopped jokes manipulate copyrighted works into new ones. Effective communication...It often feels like machine learning experts are running around with a hammer, looking at everything as a potential nail - they have a system that does cool things and is fun to work on, and they go in search of things to use it for. But what if we...California residents finally have a law designed to dismantle some of the secrecy around domestic acquisitions of warzone surveillance equipment.The weapons of the United States military—drones, mobile command centers, sound cannons, and more—have been handed off to local law enforcement for years. The transfers have equipped police departments with the...The Court of Justice of the European Union has issued a long-awaited judgment on the compatibility of the EU Copyright Directive’s filtering requirements with the Charter of Fundamental Rights of the European Union. The ruling recognizes the tension between copyright filters and the right to freedom of expression, but falls...The joy of tinkering, making, and sharing is part of the human condition. In modern times, this creative freedom too often is stifled by secrecy as a means of monetization - from non-compete laws to quashing people’s right to repair the products they’ve already paid for.Adam Savage—the maker extraordinaire best...Copyright filters are having a bit of a moment in Washington D.C. The with a process to determine what, if anything, constitutes a standard technical measure (STM) that platforms would have to accommodate. And, if that proves too onerous, ...Today, EFF joins a diverse coalition of civil society and tech companies to call on Congress to pass strong anti-monopoly rules for the Internet. We do this because it has long been EFF’s belief that users have the right to make their own choices—and the current state of Big Tech...When a pipeline bursts, journalists might want to investigate whether the pipeline complied with federal regulations. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItThe antitrust lawsuit against Google filed by the Department of Justice (DOJ) and eleven state attorneys general has the potential to be the most important competition case against a technology company since the DOJ’s 1998 suit against Microsoft. The is broad, covering Google’s power over search generally, along with . Instead of asking for money damages, the complaint asks for Google to be restructured and its illegal behavior restricted.This suit flows from investigations by the DOJ Antitrust Division that have ....

public

Mitch Stoltz

We're the Electronic Frontier Foundation. We defend your civil liberties in a digital world.

Antitrust Suit Against Google is a Watershed Moment

No article scores yet.

CRITIC REVIEWS

PUBLIC REVIEWS