Lawyers for the Department of Justice (DOJ) and Google have sparred in a Washington, D.C., courtroom in the recent weeks, as the remedies trial for the antitrust case U.S. v. Google continues to unfold. The government secured a dubious ruling in its favor last summer, which is likely to fall on appeal. First, however, U.S. District Judge Amit Mehta must prescribe remedies to mend the supposed ills caused by Google’s supposed misbehavior.
Reflecting on the DOJ’s arguments, one wonders exactly what the agency thinks it’s doing. Antitrust law, rightly applied, serves as a sniper rifle — a precision weapon to eliminate anticompetitive conduct in the relevant market. Judge Mehta found that Google’s deals to gain a default position — e.g., on web browsers and Android phones — amounted to just such anticompetitive conduct. The government’s remedies proposal, however, ventures far from this discrete finding: It has asked the court to dissect Google’s business model and redistribute the fruits of untold labor hours and capital investment to its rivals. Properly understood, the DOJ is engaged not in antitrust enforcement but central planning.
On the day the remedies trial began, the DOJ’s antitrust chief, Gail Slater, declared: “We are not here to relitigate the case.” This modest statement of intent shrouds the truth about the wholesale rearrangement of the online search market the agency is now seeking. The bulk of the DOJ’s desired remedies have nothing to do with blocking the offending contracts identified in the district court’s opinion.
According to the DOJ, Google must divest its browser, Google Chrome, and perhaps Android. The agency also suggests that the company must supply its competitors with search data and hard-innovated digital infrastructure. And it must be stopped from competing too effectively in the artificial intelligence (AI) industry. In short, Google’s market share must be made to dwindle, by whatever means necessary.
American antitrust law does not outlaw merely being a monopolist, so long as that status was not gained through anticompetitive means. The government, then, cannot rightfully interfere with Google’s operations or market share if doing so means doing more than forbidding the discrete violations enumerated in the district court’s liability finding (with certain exceptions, irrelevant to many of the remedies proposed). The court’s discrete finding last summer did not infuse the DOJ with authority to manufacture artificial competition in the search engine market. So long as Google ends practices deemed illegal, the government has no rightful interest in reducing its market share or promoting its rivals.
Google Search’s dominant position resulted from offering the best-in-class search engine. This excellence flows from Google’s relentless innovation since product launch in 1998. Not even Judge Mehta’s opinion condemning Google’s default agreements denied that its product outdoes the competition.
During the remedies trial, a senior executive at Apple told the court that, irrespective of the trial’s outcome, Apple will maintain Google Search as the default search engine, due to its superior quality. “I don’t believe there’s a price in the world that Microsoft could offer us” to switch to Microsoft’s Bing, the executive said previously. “They offered to give us Bing for free. They could give us the whole company.” Lacking such sound judgment, Mozilla Firefox replaced Google with Yahoo! in 2014, inducing a cratering of clicks and ad revenue — not to mention a user revolt.
Moreover, besides its odor of central planning, the DOJ’s program is rankly redistributionist. The agency’s bid to force Google to open its digital infrastructure to competitors — besides endangering users’ privacy — would constitute a transfer of a wealth of knowledge, trade secrets, and intellectual property from a large, successful firm to smaller, less competitive rivals. “This infrastructure is the product of years of investment, innovation, and refinement,” argues Mark Jamison of the American Enterprise Institute. “Yet under the DOJ’s plan, firms that failed or refused to create their own infrastructure would be handed Google’s for pennies on the dollar.” Take from the big guy, give to the little guy — it all smacks of progressive economic policy.
Indeed, the Trump DOJ’s posture towards Google resembles those of its radical Biden-appointed predecessor and the European Union, whose technocrats have submerged American tech companies in frivolous litigation and gargantuan fines. President Trump won the White House promising to abandon Biden’s economic agenda. And since January, Trump has resisted forcefully the overreach of EU tech regulators. The DOJ’s conduct contravenes both aims.
In the final analysis, it becomes clear that Google’s rival search engines have failed to compete. Yet the status quo is not static. Someday soon, Google’s market share will likely fall before surging AI products and other innovations. But the end of Google’s dominance must come at the hand of competition and innovation, not hubristic Washington bureaucrats who hope to remake an entire market in the image of their own myopia.
