The Secret Trial

This article appears in the December 2023 issue of The American Prospect magazine. Subscribe here.

At the end of week six of the U.S. v. Google antitrust trial, the last session before a long weekend, the pact between judge, plaintiff, and defendant suddenly unraveled. Inside Courtroom 10 at the federal district courthouse in Washington, it was business as usual. Witnesses had been sworn in, questioned, cross-examined, re-examined, and excused. The respective legal teams jousted at the stand and returned back to their opposing tables. The judge, Amit Mehta, draped in black robes, often with a red tie peeking out, sat austerely behind the bench. Reserved and professorial, the Obama appointee took notes on a laptop passively, as if conducting a seminar discussion, interjecting occasionally to prompt further questions of the witness or rule on objections.

The two trial teams huddled at their tables. Reporters in the press section snapped their notebooks closed, awaiting further housekeeping matters from the judge. This daily routine had become normal for the small cadre who’d been showing up day in and day out: government officials, lobbyists, an ever-thinning press corps, and lots of lawyers. Some had direct financial stakes in the decision, others reporting assignments, and many were billing by the hour.

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For over a month now, they had been bearing witness to the first major monopolization case in 25 years, initially billed as the Trial of the Century, though it had now come to be identified with a more insidious name: The Secret Trial.

Secrecy, in fact, had brought a newcomer to the courtroom on week six. He was here to call into question the proceedings to which everyone had grown accustomed, to shake the justice system and its observers out of their lethargy and acquiescence.

At the judge’s request, the stranger stood from the spectator section and approached the stand. Tall, spindly, in his forties, he wore a dark suit with a blue tie and brown Oxford shoes.

He introduced himself as Al-Amyn Sumar, legal counsel for The New York Times. Earlier that week, the Times, along with a consortium of other publications, filed a motion to challenge the unprecedented amount of obstruction to public access in the trial. “What we’d heard coming out of the courtroom was troubling to say the least,” Sumar later told me.

Their counsel now had the floor to try and persuade Judge Mehta to reverse course. This wasn’t Sumar’s first encounter inside a contentious courtroom. One of his early cases at the Times involved a jury dispute at the El Chapo trial.

Sumar opened by acknowledging the difficulty of the judge’s decisions in such an unusual case. It was a hedge for the searing comments to come.

He then listed the factors that separated this case from any other his legal team had seen before. Those included numerous closed-door proceedings, withholding of public evidence, and extensive confidentiality claims by companies (not just Google, but secondary parties to the case like Microsoft and Apple) that were granted all too liberally by the judge. Even access to trial transcripts were scant, trickling out weeks after examinations.

In the last major monopolization case, against Microsoft in the 1990s, the public received exhibits the day they showed up in court, Sumar told the judge. It was customary at the time, and helpful for the audience, who could actually follow the examinations, referencing small lines of text on grainy television monitors in the courtroom. Both parties already had to notify one another about which slides they plan to show to witnesses anyway, before starting court for the day.

You had to be physically in the nation’s capital in order to attend or report on the trial, with cellphones and electronics turned off.

In the Google trial, as Sumar laid out, press members still could not access the bulk of public exhibits already presented in open court. Media requests to see the exhibits were going unanswered, delayed, or otherwise held up by a byzantine process controlled by the parties involved, though mostly by Google. Even the daily witness list was withheld until the last minute.

Confidential sealing and redactions of documents had also run rampant. Basic facts like Google’s market share were hidden. In one case, an unsealed exhibit redacted data that turned out to be publicly available information about Google gathered from a European Union study.

Google demanded these redactions and delays because they claimed these were business secrets that could hurt them in the marketplace if revealed. But when companies make confidentiality claims because of competitive harms, the burden of proof falls on them to demonstrate why that information was competitively sensitive. Outside parties, Sumar argued, need to have channels to contest these claims and submit petitions.

Though the Times’ counsel delivered his argument with measure and refrain, his exasperation got the better of him at times. He punctuated his points with “it’s hard to understand why there’s so much information being denied” and “this simply can’t be the best way to go about the legal process.”

Sumar urged that public exhibits be posted in a timely manner and that a clear process be arranged for outside counsel to argue for the release of sealed documents. He concluded by insisting that his charges were not merely a matter of norms. Public courts and their presiding judges are required to uphold a level of transparency and press freedoms based on legal precedent. “Impediments in this case to timely public access have a real cost to the public’s faith in the justice system,” said Sumar.

The room was quiet upon the conclusion of Sumar’s remarks. He’d stated plainly in open court what many members of the press had only suspected with partial assurance and voiced privately amongst themselves: This trial had gone off the rails.

Judge Mehta, clearly taken aback by Sumar’s tirade, took a pause before responding. A Justice Department attorney briefly tried to issue a platitude for the record about the government’s commitment to transparency, but the judge cut him off angrily: “Let’s get to the point.” Emotion flashed for the first time from a judge who’d been resolutely stoic thus far.

Mehta then turned back to the Times counsel, stammering: “Where were you six weeks ago when this all began?”

This scene in court, on Thursday, October 19th, was the climax of a courtroom drama that had been building for weeks, a subplot that ultimately came to dominate much of the coverage of a trial ostensibly about the dominance of a tech giant.

I was there, behind the veil of secrecy, watching as a multibillion-dollar corporation, with the tacit help of a deferential judge and even its adversary in the Justice Department, tried to privatize our public court system. Google nearly managed to do so without anyone even blinking, by leveraging its power over the court in much the same way it had wielded influence in the technology markets it controlled. The strategy was about both obstruction and intimidation. It instilled a sense of learned helplessness among trial reporters, who knew that their grasp of the full case and ability to explain it to readers would be permanently attenuated due to an inability to access basic facts in the public interest.

The Times counsel’s momentary address changed the course of the trial. From the outset, Google vigorously tried to keep under wraps the key figure upon which the entire case turned: how much revenue it hands over to mobile and desktop carriers to secure its position as the default search engine and cement its monopoly status. These exclusionary contracts are the core of the government’s case, and after weeks of outside pressure, the judge finally demanded that Google release the number in open court. It turned out to be far greater than estimates indicated: $26.3 billion in 2021, greater than the annual GDP of Bosnia and Herzegovina and 100 other small nations.

The verdict in the case could very well be determined by that figure, and the saga of how we arrived at its unsealing.

THE MAKINGS OF THE SECRET TRIAL BEGAN well before either side entered the courtroom. In the weeks before the September 12th start date, a number of suspicious occurrences took place that set off alarm bells for antitrust and First Amendment advocates.

For one, Google had been caught purposefully deleting chat histories among its employees, potentially qualifying as evidence destruction while under litigation. A California court sanctioned Google for this conduct, but the judge in The Secret Trial opted not to do so in the pretrial period.

Judge Mehta denied a request by numerous organizations for a public audio line to the trial, even though it had become standard practice since the pandemic. That meant you had to physically be in the nation’s capital in order to attend or report on the proceedings, with cellphones and electronics off.

The rationale for the audio line was that this wasn’t just an ordinary civil trial. The government’s lawsuit against Google, filed in 2020 by the Trump Justice Department, involved a ubiquitous consumer product used by practically everyone in the country. In arguing that Google violated the Sherman Antitrust Act, the DOJ was putting one of the most powerful corporations in human history in its crosshairs by reviving a body of law that many thought had been relegated to irrelevance.

For much of Google’s history, the globe-spanning tech giant wasn’t accustomed to being cast as the heel. It took as its motto “Don’t Be Evil,” and claimed to be a symbol for the new age of American technological prowess in the 21st century.

But its glowing reputation among much of the public faltered after the 2016 election, when the company facilitated Russian disinformation—often willingly—via its centralized information platform. The political backlash also fueled the renewed anti-monopoly movement taking shape in the country; Google became one of its central targets. The movement grew on both the left and the right, swept into the White House, and led directly to the lawsuit to break up Google’s search engine monopoly. The DOJ was also joined by 50 state attorneys general as parties to the case, an uncharacteristically bipartisan showing. The Biden administration filed a separate lawsuit this year against Google’s adtech monopoly as well. Gone were the days of the Obama administration, which met with Google officials more than once a week on average throughout his presidency, and whose federal antitrust regulators primarily settled cases with slaps on the wrist.

Google had untold future profits on the line. The government, too, had a lot riding on the case. The trial would be a major test for the new approach to antitrust enforcement adopted by the Biden administration, which loudly pronounced corporate concentration as a signature economic crisis. The showdown in the D.C. district court would feature testimony from some of the most powerful individuals in the world: Google CEO Sundar Pichai and Microsoft CEO Satya Nadella, to name just two.

The moment initially garnered significant media coverage, scrutiny that is critical to enforcing “the people’s law,” as antitrust proponents call the Sherman Act.

“What the antitrust movement needs just as much as victories is for the public to be tuned in and engaged,” said Megan Gray, an independent lawyer and former counsel for DuckDuckGo who frequently works with the anti-monopoly groups pushing for the audio line. She attended the majority of the trial in person, because otherwise she would have barely known about what was happening inside.

GOOGLE’S CHIEF ECONOMIST HAL VARIAN paced anxiously up and down the hallway outside the courtroom during the afternoon break. Well above six feet and built like a scarecrow, he glided across the hallway with far fewer strides than most, his mop of white hair bobbing along. At the age of 76, Varian’s illustrious career had brought him through many corridors of power, though a courthouse was not typically one of them. A renowned neoliberal economist with theorems ascribed to his name, a Guggenheim fellow, and a top-level employee at Google, he now found himself nervously awaiting his return to the stand, as the first witness in a trial alleging illegal conduct against the company that he’d helped build up from the ground. An attaché case at his elbow, he sequenced out his steps methodically, as though he were retreating into the realm of equations that he knew so well.

Moments earlier, he’d been grilled on internal memos and emails he authored years back regarding the implementation of a business strategy based on the “power of defaults,” a term he coined. The government alleged that these documents indicated an intent to monopolize by throttling competition.

The journalists lined up along the wall of the hallway, trying to intercept members of the trial teams, who avoided us as though we were carriers of some unknown disease. Instead, we resorted to watching the tormented strides of the star witness like an exotic bird.

“You think he’s warming up his legs to make a run for it?” a beat reporter for the trade publication MLex asked after a few minutes in a trance.

“No, he can’t, he’s under subpoena,” said the court reporter for Law360, always one for taking things literally.

“Hasn’t stopped them before,” the MLex reporter quipped back. “They ask for forgiveness later.”

On that first day of the trial, the hallways were crawling with reporters and other attendees. The line to get into the courthouse that morning snaked around the building, with some showing up at 6 a.m. to secure a spot inside. “Is this like Coachella for legal nerds?” said an unsuspecting junior attorney from the Kentucky Attorney General’s Office, a party to the case, who showed up later than expected. The showing was a testament to the amount of initial public interest in the case.

As early as 2003, a Google memo stated that it was actively “trying to discourage entry by a potential competitor.”

Varian’s testimony wasn’t going well for the defense, at least according to the writers of the first draft of history. There was an air of arrogance and dismissiveness to his answers, reminiscent of Bill Gates’s disastrous depositions in the Microsoft trial, which were taped and played across TV news. Like Gates, Varian often disputed the meaning of ordinary words and even questioned simple points by the DOJ’s lead prosecutor Ken Dintzer that later Google witnesses would concede, like the fact that Google’s search engine was more advanced than its rivals because of higher traffic numbers.

Many antitrust experts thought the government’s decision to call Varian as the first witness was a risky yet “bold decision.” That’s how Biden’s former competition policy czar, Columbia law professor Tim Wu, put it to me in court that day. So far, the gamble seemed to be paying off.

Ken Dintzer was familiar with this type of witness. As a young attorney in the Clinton Justice Department, he’d worked on the Microsoft investigation, saw its ups and downs, and knew the challenges of translating intricate technological jargon into legal parlance. Now, years later, with more salt and pepper in his goatee, Dintzer commanded the examination even as Varian took the public exhibition slides more as prompts for his own whimsical musings than testimonies under oath, rarely answering questions directly.

The goal with Varian was to establish the foundation for the government’s case, which it had laid out earlier that morning in its opening statement.

As far as trial court proceedings go, opening statements provide the only real opportunity for both sides to paint with broad strokes the arguments they are making. Witness testimony is downright pointillistic, intensively fact-specific, and at times gruesomely laborious.

Dintzer set the stage in his opening first through an analogy for Google’s monopoly. “This case is about the future of the internet,” he said. The defendant was the “on-ramp” and “gatekeeper” of the digital world, where human knowledge was stored and most of our commercial activity conducted.

Google would later be described as “a ferry to the island” and “a card catalog” to a digital library of universal knowledge; its algorithm, a “flywheel”; its datasets, a “corpus”; and the user advertising base, a “cranial cavity.”

The government’s argument was twofold. The DOJ had to both detail Google’s dominance in the search market, and then provide concrete evidence that it wielded its power to harm competitors in violation of the Sherman Act.

Google, the government alleged, engaged in revenue-sharing agreements with mobile and desktop makers, primarily Apple and Android, to lock in its position as the default search engine across most of the internet. While we didn’t know at the time the total value of those agreements, Dintzer estimated it was in the billions.

These exclusionary contracts, he said, blocked competitors from getting a foothold in search. By sharing revenue streams, Google not only created incentives for its corporate partners, like Apple and Samsung, to maintain the default agreements, but dissuaded those companies from developing their own search engines, as evidence would show.

Through the “payola” of default revenue sharing, Google secured massive traffic numbers from users who often didn’t know they were interacting with a default, and didn’t understand that they could switch to alternatives. Traffic delivered unparalleled scale, which translated to vast troves of data on users Google could use to refine its machine learning. Data became an insurmountable barrier to entry for smaller competitors.

With scale and data, Google was the premier destination for digital advertisers to target consumers. Google could manipulate adtech markets to increase prices on advertisers and worsen the user experience by placing ads even in the most innocuous queries, as court documents revealed. The state attorneys general handled the adtech part of the argument.

“This feedback loop … has been turning for more than 12 years,” said Dintzer in the opening remarks. “And it always turns to Google’s advantage.”

GOOGLE HAD RETORTS OF ITS OWN.

The tech giant turned to an old hand, its chief legal officer Kent Walker, who steered the company through the last government investigation it faced in the early 2010s. They hired the trial team at Williams & Connolly, a powerhouse Washington law firm quite accustomed to seizing the national spotlight. Founded in 1966 by Edward Bennett Williams, the ultimate Washington legal insider, it had represented Bill Clinton during his impeachment proceedings and Oliver North during the Iran-Contra affair, along with a long list of corporate clients, including Amazon and BP.

Williams & Connolly’s John Schmidtlein, clean-shaven and with silver-white hair, handled most of the testimony and delivered the opening statement.

His argument sounded like a sales pitch to investors: Google was dominant simply because it had the best product. Its competitors were just sore losers. As their opening indicated, the strategy would be to cast Microsoft as the foil in the case and the government as working on Microsoft’s behalf, not for the best interests of consumers or innovation. Schmidtlein took a different interpretation of antitrust law, which he repeated time and again could not “say anything about market outcomes” but merely determine whether or not fair competition took place.

Much of Google’s case focused on its rise to power and positive impact. In the early 2000s, Schmidtlein reminded us, Yahoo had once been the dominant on-ramp to the internet, before Google surpassed it by building a better search engine. Today, Google insisted, it was deeply worried about insurgents like TikTok and Amazon cutting into its market share. This was just the nature of the market at work. At times, Google became self-effacing, downplaying its importance by referring to itself as “grandpa Google,” as some younger audiences call it.

“The government’s claims are outdated,” Schmidtlein said.

Google’s attorney also argued that the default agreements were entirely competitive, since other rivals vied for those contracts and the carriers chose the best product. They had “pro-competitive” knock-on effects in outside markets by creating better search products for the carriers, helping Apple outcompete Motorola and BlackBerry, for example.

Hal Varian’s testimony featured the first clash between these opposing interpretations. But the government elicited three crucial pieces of evidence from Varian that ultimately defined the case.

For one, internal communications showed Varian coaching employees not to use certain words that could trigger antitrust concerns, such as “market share.” Varian disputed the exact nature of these remarks, claiming not to be an antitrust legal expert.

As early as 2003, a memo written by Varian stated that Google was actively “trying to discourage entry by a potential competitor” and sought default status to do so. A key company slide, which Varian commented on at the time, showed that the company knew defaults would “strongly influence choice” for consumers and “could be a powerful strategic weapon for Google.”

In public, Varian famously downplayed the importance of scale and “network effects.” He believed Google did not benefit from the quantity of queries but simply developed “better recipes” via its algorithm. However, the government revealed that search engine engineers at Google internally dissented against Varian’s assessment and strongly fell on the side of network effects.

The government backed up its examination of Varian with expert testimony from a behavioral economics professor at Caltech, Antonio Rangel, who conducted a study into how consumers actually interact with default settings in search engines. Despite Google’s mantra that “choice is just four clicks away,” Rangel’s assessment found that in Google’s case specifically, the switching cost “generates a sizable and robust bias towards the default.”

AFTER THE FIRST WEEK OF HEARINGS, The Secret Trial effectively went dark. As the DOJ called upon top-level executives at Google, Apple, and Microsoft to discuss the default agreements, their respective employers pushed for the witness examinations to be held in closed session, without members of the public or the press, because of the allegedly confidential subject matter. Judge Mehta and the DOJ mostly acquiesced.

As a result, fewer reporters started showing up to court, since there was no guarantee that they’d have any copy to turn in to their editors. Even when court came back into session for brief moments that week, it was nearly impossible to follow without knowing the full context of the documents being shown. This state of affairs took the air out of any media and public interest in the case that built during the first week.

Those of us who remained prowled outside the courtroom like house pets locked outdoors for the night, barking at any trespasser. In this case, the trespassers were any lawyers who, upon exiting the courtroom, were immediately pounced on by reporters trying to glean any information on what was happening inside and how long they’d be exiled out in the cold hallway. Under dire straits, certain antics transpired among a restless press corps. That mostly entailed some casual wagers—bets on how much of the proceedings we’d get to see that day or how many times we’d be told “just another 30 minutes or so.”

A group chat emerged among the reporters still hanging around, to inform one another about when court was going back into session. But in hindsight, kicking journalists out of the courtroom might not have been the most prudent way to conduct the trial.

That week, a conflict between the judge and a member of the press, Bloomberg veteran antitrust reporter Leah Nylen, spilled out into the open. The incident led directly to the New York Times lawyers getting involved in the trial.

The dispute began during an examination of Google VP for Finance Michael Roszak, over whether a contentious document could be presented in open court as evidence.

Since the first week, Google had flooded the zone with repeated objections. Most of the obstruction had to do with the contract details and dollar figures related to its default agreements, extending as far back as its 2007 agreement with Apple, which had long been voided. Even Judge Mehta had expressed frustration with Google for challenging government evidence as “hearsay.” In this instance, he ruled that the document should be withheld, for the time being at least, on the grounds that it appeared to be “embarrassing” for Google.

Schmidtlein, the lead Google attorney, wasn’t finished. He also complained that the DOJ had been posting public exhibits on its website, a source of concern because it could lead to news coverage, or as Google’s trial team referred to it, “clickbait.”

Judge Mehta admonished the DOJ for not informing him that the team was posting exhibits, which generally is standard practice. Google forgot to mention that its side too had been posting select exhibits online.

To avoid Mehta’s wrath, the DOJ quickly agreed to take down the exhibits.

Unsealing of evidence in the final weeks bolstered public awareness about what the DOJ managed to elicit from witnesses.

At this point, Nylen stood up from the press aisle of the spectator section to protest this decision. Heads turned, and the judge addressed her directly. Nylen said the exhibits were important evidence of public interest and a matter of press freedoms. Before a final decision was reached, she insisted that a Bloomberg lawyer be present to represent the press’s side of the case.

Asked later what compelled her to stand up, Nylen said: “I was taught as a young cub reporter that if a judge is going to close off the court … it’s your job to get a lawyer in the room.” In over a decade as an antitrust reporter, she had never seen a court “as locked down as this one.”

Nylen’s protest was the moment when The Secret Trial grabbed the ear of press freedom watchdog groups. A number of outlets, including this one, ran stories about the level of secrecy, which The New York Times called “unprecedented” based on interviews with First Amendment experts.

Though much of the criticism was directed at the judge, the DOJ took heat as well for not defending the public interest. As Matt Stoller, research director at the American Economic Liberties Project, put it to me: “The DOJ trial team cares about beating Google, not public access to the trial.”

Judge Mehta took notice of the critical headlines. He’d generally taken a hands-off approach to Google’s obstruction efforts, but the following week he called for changes to the procedures. He addressed the media reports, some of which he called “misleading.” But later on, once the Times got involved, he would admit: “I will put it on myself that the court was closed more than it should have … I’ll fess up to that.”

In the weeks following Nylen’s protest, the courtroom remained open for most of the remainder of the trial, a clear victory for public access.

After consultation with a Bloomberg lawyer, Mehta also allowed the DOJ to post their exhibits but under certain conditions. The DOJ had to let Google review the slides before posting them, and he would only intervene if the two sides informed him that they could not come to an agreement.

This only created further problems, effectively giving Google a veto to delay or obstruct the posting of exhibits. Many of those exhibits had already been presented in open court. Weeks after the judge’s orders, new slides began appearing online, but many of the previous slides taken down from the DOJ’s site still were not available.

The Times motion led to another shake-up of court procedure, with a hard deadline of 48 hours on the parties to post the exhibits that had already appeared in the courtroom. The final stretch of the trial would be significantly more open.

$26.3 BILLION. THE NUMBER RANG OUT through the courtroom. In the press area, reporters exchanged hurried glances and several stood up to get a closer look at the figures on the monitors to double-check they’d heard it right. The figure was the total amount Google shared in revenues in 2021 to be the default search engine across mobile and desktop devices, mostly on Apple and Samsung devices.

The reveal did not come during the government’s examination, but during Google’s defense in week seven. With Google’s senior vice president Prabhakar Raghavan on the stand, the government pressed him on the exact monetary value of the default agreements, which thus far he’d only vaguely referred to as important to Google’s operation. The DOJ attorney wanted to pull up a slide and ask him about the full amount under oath. Google objected, per usual, but this time the judge overruled.

As many observers had pointed out, the figure was within the scope of what both Apple and Google, as publicly traded companies, are required to report on Securities and Exchange Commission financial disclosures. Financial analysts already had estimated the figure in the billions. Judge Mehta allowed the DOJ to proceed.

Without the Times’ motion and mounting scrutiny on the confidentiality claims in the trial, Judge Mehta likely would not have felt compelled to force Google’s hand. In the first weeks in court, any discussion of the details of Google and Apple’s default agreement went into closed session. But the total figure put an exclamation mark on the government’s case that these payments were essential to maintaining Google’s monopoly.

Much of Google’s cross-examinations tried to downplay how much the default deals mattered to the company. Its legal team suggested that users would use Google anyway because it was a better product. Attorneys pointed to the sizable number of users on Windows computers who still opt to use Google’s search engine, even though it’s not a default. But when Microsoft decided in 2005 to default the Internet Explorer browser to its own search box, Google vigorously complained, in a document released at trial, saying that it would create “harm to the competitive process.”

The $26.3 billion was more than 10 percent of Google’s total revenue in 2021. We later learned that Google hands over to Apple 36 percent of ad revenue collected from its devices, which might be as much as $20 billion by some estimates. These figures put in perspective just how much Google values default placement and makes it hard to believe the company would share such a huge portion of its revenues if it didn’t believe it had to.

In questioning of Apple executive Eddy Cue, the DOJ elicited that Apple entertained developing its own search engine. When Google caught wind of it, they made clear that such development would threaten the revenue-share agreement. That was also true when Apple considered implementing a choice screen for Safari browsers, so users could select their default search engine instead of receiving it preinstalled. As repeated time and again, the demand to partners was constant: “No default—no revenue share.”

The government called the heads of several search engine startups to attest to the challenges they faced getting a foothold in the market. Each of them cited direct conversations with mobile carriers and original equipment manufacturers that curtailed the discovery of their products, because of concerns about violating the default agreements with Google.

Alex Austin, CEO of the startup Branch Metrics, said their search engine was never fully discoverable on mobile or desktop because of restrictions imposed by carriers so it wouldn’t siphon off any traffic from Google.

In one particularly revealing testimony, the government called a former Google employee, Sridhar Ramaswamy, who went out on his own to develop a privacy-focused search engine alternative called Neeva. He knew Google’s operations from the inside, especially the power of defaults, but thought he might be able to overcome it. He couldn’t.

“The payments effectively make the ecosystem exceptionally resistant to change,” said Ramaswamy.

The $26 billion was far more than Google invested in research and development, as the DOJ highlighted. That comparison is crucial for another part of the government’s case: that Google abused its monopoly by degrading the quality of product it delivered to consumers.

In fact, documents showed that Google’s VP for finance Mike Roszak bragged in a company memo that it didn’t really have to improve the user-facing side of its operation because its revenues were coming from advertising. This was the hidden document that Mehta called “embarrassing,” and sparked Nylen’s protest from the stands.

“Search advertising is one of the greatest business models ever created,” Roszak wrote. “We’ve essentially been able to ignore one of the fundamental laws of economics—businesses need to worry about supply and demand … we could mostly ignore the demand side of the equation (users and queries).”

According to Roszak, only high-demand illicit businesses like “drug markets” and “cigarettes” could compare to Google’s profit model.

The government also tied Google’s worsening user experience to its ability to manipulate advertising markets. Google could turn the screws on advertisers by jacking up rates on ad spots on a whim whenever it needed to hit its quarterly profit benchmarks. In 2019, Google’s VP overseeing advertising, Jerry Dischler, directly cited “pricing knobs” and “tuning” in a company email, requesting his team increase ad revenues for the quarter by around 5 percent.

All this information came from testimonies later in the trial, after the pushback on secrecy. Unsealing of evidence in the final weeks bolstered public awareness about what the DOJ managed to elicit from witnesses. A full compilation of trial documents and transcripts dating back to the first day are now available on the website of The Capitol Forum, an investigative news service.

The outside pressure campaign managed to open up the trial, and could have bearing on the verdict in the case, set for early in the new year. Instead of ruling on a secret trial, Judge Mehta will have to reckon with what is already available to the public.

“Public opinion should be taken seriously for these types of cases,” said Megan Gray on a webinar about the case, “because judges aren’t impervious to it.”