Comment After more than 15 years of insisting that “competition is only a click away,” Google’s antitrust mantra is no longer keeping the regulators at bay.
Back in 2013, Google escaped unscathed from a US Federal Trade Commission probe when the watchdog agency closed its investigation without bringing charges. Its other run-ins with competition cops around the world have been similarly inconsequential. There have been fines, but they’ve been immaterial.
In the past eight months, however, Google has lost two major US competition lawsuits: One brought by Epic Games over Google’s grip on the Android ecosystem, the other brought by the Department of Justice over the Big G’s market-dominating search advertising business.
In the Epic Games case this week, the FTC – emboldened under boss Lina Khan – urged the judge to consider an appropriate remedy and ignore Google’s fretting about the potential cost of compliance.
And in the DoJ’s search advertising case, the focus has also turned to possible remedies, now that Google has been declared an unlawful monopolist.
The Chocolate Factory has appealed the Epic verdict and also plans to challenge the DoJ’s victory.
However, given the EU’s preliminary findings in 2023 that Google violated antitrust laws with its advertising practices, and a separate trial this September over Justice Department allegations about Google’s ad tech operations, it’s looking increasingly unlikely the search giant will survive in its current form or with its current arrangements.
Reports suggest American prosecutors working on the search advertising case have been discussing remedies including a corporate breakup, to present at a September 6 hearing. These measures include possibly slicing off Chrome and Android from Google into separate entities; forcing the internet giant to ditch its exclusive deals that make it the default search engine on devices and in browsers; and/or making it share data with rivals.
Jason Kint, CEO for trade group Digital Content Next, told The Register that with regard to the DoJ’s search advertising case, “Forced divestiture of Chrome and Android I think are both on the table for sure.”
“What the judge made clear was that they [Google] have an overwhelming monopoly in search,” said Kint. “And they’ve abused it.”
If the pending separate ad tech trial – which covers the backend auction part of Google’s ad business – goes the same way as the search one, Google’s DoubleClick business, or a related piece of ad auction infrastructure, could be on the chopping block.
One of the central issues in the DoJ’s search ads case is the payments Google makes to Apple and Mozilla to be the default search engine in Safari and Firefox. If those go away, there will be blood – not just for Google but also for Apple and Mozilla.
Apple would have to find other revenue to replace roughly $20 billion in annual payments from Google. That might encourage the iBiz to compete with Google – by building its own search engine, or acquiring one. Mozilla, already showing interest in the ad business, might be pushed further in that direction – an outcome unlikely to appeal to the anti-commercial portion of its constituency.
A fitting though unlikely outcome would be for Google to be forced to turn Chrome and the open source Chromium project over to Mozilla. That would probably involve the creation of an independent non-profit foundation that didn’t reduce browser diversity – so Chrome and Firefox could continue to lead independent lives.
Chrome could also be operated as a for-profit business, but revenue generation might be an issue – netizens expect browsers to be free, so we’d be back to default search deals and selling information to advertisers.
The possibility of forcing the divestiture of Android is also intriguing – but it’s unclear how Android development and app distribution would work if starved of Google’s monopoly money.
It’s worth asking whether any of Google’s peers – Amazon, Apple, Meta, or Microsoft – could turn Android or Chrome into a business that better served the public. The answer is almost certainly not. After all, each of these giants also faces ongoing antitrust scrutiny. And each of them would probably look for ways to make Chrome or Android more extractive.
There’s a real risk that a poorly targeted remedy would just allow some other data predator to thrive, or would degrade the overall ecosystem – as happened when wolves were removed from Yellowstone. Imagine a Meta operating Google Play, and what the privacy disclosures would look like then.
The problem is that software platforms need regulation tuned to their specific abuses. Operating a software (or e-commerce) platform is similar to operating a shopping mall, except that platform landlords can impose arbitrary terms on tenants that would never fly in the physical world. In the tech industry, a platform is simply a vehicle for unfair competition – see the FTC allegations against Amazon.
Say someone opens a shop selling maps and it proves popular. As the platform landlord, you may decide you too want to run a map shop. It would be a petty thing to do to a shop owner whose efforts and presence add value to your mall, but there’s no law against it.
And if your tenant’s shop is doing better, you can rearrange the mall layout to make that shop harder to find while you move your own shop to the entryway where everyone will see it. Or you may decide to impose some arbitrary contractual rule that gives you an advantage. Perhaps you’ll implement private APIs that make your maps function better while not allowing your tenant to use those APIs. Maybe you’ll choose to charge a commission that makes it hard for the tenant to be profitable.
Such self-preferencing is common on software platforms, when it would cause an outcry or a lawsuit in an actual mall.
Forcing Google to divest Chrome or Android may help – but whatever remedy is imposed, it needs to also address self-preferencing, just as Europe’s Digital Markets Act has done for designated gatekeepers. Platform owners should be forbidden from favoring their own services and competing unfairly with platform tenants. ®