Google Critics’ Antitrust Remedy Wishcasting

Broad remedies are like responding to a foot blister by demanding an arm amputation

Google just lost a big antitrust case, focused on its search default agreements with Apple and Samsung. But when it comes to the next phase of the case — deciding what “remedies” should fit the verdict against Google — the company’s competitors and longtime critics are already overplaying their hand.

Judge Amit Mehta’s early August verdict had three components:

• a finding that Google has market power in “general search services”;
• a finding that Google has market power in “search text advertising”; and
• a finding that Google’s default agreements with Apple, Samsung, and other companies helped Google unlawfully maintain its power in those two markets.

The Justice Department argued at trial that Google’s success in producing better, more popular search results than other companies was due to its scale — and that the default agreements denied competitors that necessary scale. Google disputed this at trial, arguing that its success was due to superior technical acumen and investment.

Judge Mehta largely accepted the government’s argument about Google’s default deals — but acknowledged a half-dozen times in his opinion that Google built its position largely through hard work.

Remedies Related to the Verdict

While Google will ultimately appeal Mehta’s verdict, up next is the second phase of the trial, to determine the best remedies befitting the verdict. A narrow remedy might be a simple injunction against Google from bidding on search default deals.

Some search rivals like DuckDuckGo have proposed persistent “ballot screens” where consumers would be prompted periodically to choose or reaffirm their search engine of choice. But companies like Apple and Samsung — who would have to administer such ballot screens on their devices — aren’t parties to the case.

Still others have suggested that Google be forced to share its click and query data with rivals. Apart from the significant privacy challenges of safely anonymizing this data, a separate part of Mehta’s ruling affirmed the established antitrust principle that Google doesn’t have a legal “duty to deal” and provide this kind of help to its search rivals.

Remedies Divorced from the Case

Those remedies are at least relevant to the findings in Mehta’s verdict. But over the past few weeks, we’ve seen a chorus of Google’s competitors and longtime critics propose remedies that have little to do with the verdict, or even helping consumers, and more to do with their longtime axe-grinding.

These critics — suffering from a kind of Google Derangement Syndrome — are lobbying the Justice Department to hobble Google for the future, not just to respond to the verdict. Consider these critics’ remedy proposals:

• Yelp CEO Jeremy Stoppelman wants Google banned from showing its own specialized search results — despite Judge Mehta tossing this argument as legally unfounded before the trial even started;
• News Corp proxy Digital Content Next wants Google blocked from using Android and Chrome data for ad targeting — despite the Justice Department not alleging that Google’s ad targeting was monopolizing behavior;
• Longtime critic Tim Wu wants Android and Chrome spun off — despite the case being unrelated to Google’s vertical integration. Even Consumer Reports acknowledged the benefits of Google-Chrome integration;
• Wu also wants “free and open access to all of [Google’s] A.I. technologies” — despite AI not being a part of the verdict;
• Former Spotify counsel Gene Burrus wants to mandate that Google rivals be able to train AI models on Google’s content — despite this not being a part of the case either.

None of the remedies have anything to do with the actual verdict, and many are divorced from the case entirely. For Mehta to require them would be like responding to a foot blister by demanding an arm amputation — when the most direct remedy would be a change of shoes.

Critics’ broad remedies are like responding to a foot blister by demanding an arm amputation — when the most direct remedy would be a change of shoes.

Kanter’s Strategic Decision

Justice Department antitrust chief Jonathan Kanter has a choice before him in deciding which remedies to seek: Seek a narrow but lasting remedy, or swing for the fences to please Google critics and risk being rejected?

Kanter didn’t initiate the case (Trump’s Justice Department did), but he is basking in victory, telling Politico that the verdict “goes on the Mount Rushmore of antitrust cases.” His allies are egging him on, with Wu encouraging a broad remedy to “return antitrust law to its historical role as a form of industrial policy.”

And Bloomberg recently reported that Kanter is considering broad remedies, including spinning off Android or even Google’s AdWords search advertising. But those remedies would prevent Google from providing Android and search results for low or no cost to consumers, meaning a spin off would leave consumers much worse off.

The Justice Department is also reportedly considering remedies involving Google’s robots.text protocol and A.I. — though it never included those concerns in its case.

Is Kanter letting his own visions of appearing on antitrust’s Mount Rushmore cloud his strategic judgment? The bigger the remedy, the more likely that Kanter will run into a buzzsaw in the courts.

Anyone who observed the trial (as I did) noticed Mehta’s repeated reluctance to re-engineer Google’s business. Beyond that, Mehta wants to make sure that his remedy survives Google’s appeal. This is where the government’s late-1990s antitrust case against Microsoft comes in.

In that case, the Justice Department proposed the breakup of Microsoft, and the trial judge accepted that proposal. But the breakup was reversed by the appeals court, in part because the breakup remedy was too broad instead of being “tailored to fit the wrong creating the occasion for the remedy.”

The chorus of Google critics are urging Kanter to go for broke, and their appeals to his hubris may succeed. But the further he strays from the core of the case, the more he risks a bigger loss.

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