Alastair Grant/AP Photo
This year marks the 25th anniversary of the Google search engine. It’s also the 25th anniversary of the last major monopoly trial in America, U.S. v. Microsoft, where the government successfully argued in U.S. District Court in the District of Columbia that Microsoft illegally bundled its internet browser on its Windows software, giving it a competitive advantage on most personal computers. The Justice Department ordered a breakup, but the case was appealed, and after a changeover in power in Washington, the Bush administration reached a settlement that instituted only minor changes to Microsoft’s business practices.
In that case, the trial itself was the remedy, as many antitrust scholars have since noted. Microsoft was publicly depicted as both ruthless about aggrandizing its power, and evasive about the means by which it did so—Bill Gates’s combative depositions, in which he argued over the definitions of basic words, were exposed to public ridicule and laughter at trial. This adverse publicity actually ensured that new companies, like Google, could rise up, according to Gary Reback, the attorney in the original Microsoft case.
“The only way you could get to Google at the time was to go through the Microsoft browser and type google-dot-com … [Microsoft] could have put up the big screen that said ‘access denied,’” Reback told Yahoo! Finance in 2019. “A strong part of the reason [Microsoft didn’t act] was because they were already under scrutiny. They had gone through this terrible trial, they had all these problems. Did they really need other problems?”
This history is now repeating itself in a landmark case starting next week, in the same D.C. District Court. It’s Google, this time, that stands accused of doing essentially what Microsoft did: paying outside companies to make the Google search engine the preset on iPhones, Android phones, and other devices, thereby preventing competition in the search space. In fact, Judge Amit Mehta cited the Microsoft case in his ruling allowing the lawsuit to go forward.
Google has said that consumers could always switch the preset option, thereby preserving competition. But as the Justice Department and Judge Mehta have asked, if the outside contracts were so inconsequential, why did Google pay billions of dollars for that privilege? The answer, the Justice Department will argue, can be seen in Google’s close to 90 percent market share in search engines.
One difference in the Google case, which is at the heart of the Biden administration’s competition strategy as it relates to Big Tech, is that this time, the trial might not be able to be the remedy, because Google is trying its best to essentially close down the courtroom to public view.
The company has argued that in an open trial, it would be forced to divulge trade secrets in open court that would be damaging to its business. As a result, there is currently no schedule for a public trial feed, via either audio or video. A limited number of reporters could attend the trial, but any transcript that would come out later could be scrubbed and redacted. And the trial would be closed off completely, including to the press, during certain days of testimony deemed sensitive to Google’s business.
The company has argued that in an open trial, it would be forced to divulge trade secrets in open court that would be damaging to its business.
Already, many of the documents in the case have been redacted. While these are often minor, anti-monopoly advocates say that Google’s attempt to wall off the trial is damaging. “This is about the public right of access to trials and holding Google accountable for its behavior,” said Katie Van Dyck, senior legal counsel at the American Economic Liberties Project (AELP), in a press conference on Wednesday.
Last Friday, AELP and three other groups filed a motion to intervene in the case for the express purpose of requesting a live audio feed of the trial. The groups requested an audio feed because the D.C. District Court already has a telephone line installed that could be used as a dial-in for the public during the case. The court has “stricter rules about broadcasting” a court proceeding, Van Dyck said, so the groups decided not to make that request.
Several key antitrust cases this year, including the Microsoft/Activision merger and the trial over American Airlines and JetBlue’s partnership, allowed public access of some kind, even though business practices were discussed openly in them. But Google opposed the AELP motion, which is consistent with its position in several cases where it’s a litigant, and its intention to put the entire D.C. District Court case under seal, with redacted releases to be made later.
“I think we’re going to have non-insubstantial chunks or portions of the trial that are going to have to be in closed court,” said John Schmidtlein of Williams & Connolly, one of Google’s team of attorneys. “I think it’s going to become administratively very, very difficult to be, with everything else that’s going on in a trial of this complexity, to be, is the line on, is the line closed, you know, all these types of things.”
Advocates questioned how complex it is to hit a button and turn a line off, compared to closing off an entire courtroom. Judge Mehta was undecided on the motion. “We want access to live testimony, which Judge Mehta said is far superior to reading a transcript,” Van Dyck explained. “It’s critical to shedding light on Google’s anti-competitive behavior.”
Judge Mehta said he would discuss with colleagues, and come to a decision before the ten-week trial begins on September 12. This was a change from earlier in the pretrial process, when Judge Mehta said there was no “pressing need” to distribute information from the trial to the public in a timely fashion. “I can’t imagine that [the media are] going to be fixed on this [trial] for the duration,” he said at a status conference in August.
On August 17, the Prospect asked the D.C. District Court if there would be a public audio feed of the trial. The court did not respond.
The reluctance on Google’s part to have a live feed of the case fits with its attempts to avoid the public record with regard to the facts of the trial. The Justice Department has alleged that Google engaged in document destruction of internal communications, both emails and chats, that would have provided evidence of its anti-competitive conduct. Specifically, Google did not suspend the “auto-deletion” of chats after a federal court order ruled that it do so, and that it privileged emails as “attorney-client” communication when they were just corporate strategy emails tagged with a lawyer. Judge Mehta did not sanction Google for this conduct.
“This trial could set a far-reaching precedent for how to check Big Tech’s power,” said Maria Langholz, spokesperson for Demand Progress, another intervenor in the motion to open up the case. “It could be most important antitrust case of the century. Our democracy is best served by full transparency in cases like this. We hope Judge Mehta will understand this and grant the public full access to the trial.”
