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“Don’t Be Evil”: Department of Justice Files Antitrust Lawsuit Against Google

By Matt Digan

On Tuesday, October 20, 2020, the Department of Justice (DOJ)—joined by 11 state attorneys general—sued tech giant Google under Section 2 of the Sherman Antitrust Act in the U.S. District Court for the District of Columbia.[1] DOJ’s lawsuit represents the first major antitrust suit against a tech company in the U.S. since United States v. Microsoft Corp., in which DOJ attempted to break up Microsoft over its alleged anticompetitive and monopolistic business practices related to tying its Internet Explorer web browser software to its Windows operating system. Questions over Microsoft’s restrictive licensing agreements with original equipment manufacturers, whether or not Microsoft manipulated its programming interfaces to favor Internet Explorer over other software, and Microsoft’s intent in its conduct were also central issues in the case.[2] The case was ultimately settled out of court and Microsoft was assuredly not broken up—might a similar future await this case?

In the complaint against Google, the government specifically alleges that Google has unlawfully maintained monopolies in the markets for general search services, search advertising, and general search text advertising in the U.S.[3] Google has established a self-powering cycle in which it uses billions of dollars collected from advertisers to pay phone manufacturers to ensure Google is the default search engine on browsers, thereby allowing Google to further finetune its search algorithm, which in turn attracts advertisers, etc.[4]

Google has faced increased antitrust scrutiny both in the U.S. and abroad over the last few years. European courts have leveled fines of $1.7 billion, $2.7 billion, and $5 billion against Google in relation to its anticompetitive business practices in just the last three years.[5] While these fines and court decisions wind their way through the appeals process, commentators and critics have noted that mere fines and conditions on behavior may not be enough to curb Google’s anticompetitive behavior.[6] The government’s complaint did not specifically call for breaking up Google, but it did request the court to, “[e]nter structural relief as needed to cure any anticompetitive harm.”[7] Such wording leaves open the possibility of breaking up Google without specifically calling for such relief, which would no doubt have caused even more publicity and controversy.

Google took to Twitter to respond immediately to the filing, calling the lawsuit “deeply flawed.”[8] What Google says on Twitter and in other public comments may not be the literal defense it mounts in a courtroom, but their comments so far have rested on the idea that Google and its services are so dominant not because of anticompetitive practices, but because consumers like and enjoy the products and services.[9] Google noted that while its search engine may come preloaded on many phones, nothing is stopping users from simply using a different search engine if they so choose. Again, on Twitter, Google took the rhetoric a step further by accusing the government of claiming that Americans “aren’t sophisticated enough” to change their default search engine and use other products.[10]

While this lawsuit comes from a Republican administration and 11 Republican attorneys general, the concern over tech companies’ size and power is a bipartisan one.[11] Later in the day that the DOJ filed the lawsuit, the attorney general of New York released a statement on behalf of the attorneys general of Colorado, Iowa, Nebraska, North Carolina, Tennessee, and Utah stating that the two parties would cooperate in their various lawsuits against Google.[12]

While further developments in this case are likely weeks away at the earliest, this lawsuit may be the opening salvo in a new war on tech giants. Just three weeks ago, the House Judiciary Committee released a scathing report that found that Amazon, Apple, Facebook, and Google exercised monopolistic power.[13] The combination of the report and the DOJ’s lawsuit might signal an uncertain future for the tech industry’s behemoths, but only time will tell how these issues develop.

[1] Complaint at 1-2, United States v. Google, LLC, (D.D.C. 2020) (Case 1:20-cv-03010), https://www.justice.gov/opa/press-release/file/1328941/download.

[2] See Avery Hartmans, Google is facing an antitrust showdown with the DOJ more than 22 years after Microsoft’s watershed case. Here’s why the government scrutinized Gates and how it played out for the company., Business Insider (Oct. 20, 2020), https://www.businessinsider.com/bill-gates-microsoft-antitrust-case-history-outcome-2020-7; U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

[3] Id.

[4] Michael Balsamo and Marcy Gordon, Justice Dept. files landmark antitrust case against Google, AP News, (Oct. 20, 2020), https://apnews.com/article/google-justice-department-antitrust-0510e8f9047956254455ec5d4db06044.

[5] Jonathan Shieber and Ingrid Lunden, The Justice Department has filed its antitrust lawsuit against Google, Tech Crunch (Oct. 20, 2020), https://techcrunch.com/2020/10/20/justice-department-will-reportedly-file-its-antitrust-lawsuit-against-google-today/.

[6] See Id.; Balsamo et al., Justice Dept. files landmark antitrust case against Google, AP News.

[7] Complaint at 57, United States v. Google, LLC, https://www.justice.gov/opa/press-release/file/1328941/download.

[8] Balsamo et al., Justice Dept. files landmark antitrust case against Google, AP News.

[9] Id.

[10] Eileen McDermott, DOJ Takes Key Step Toward Breaking Up Big Tech with Antitrust Complaint Against Google, IP Watchdog (Oct. 21, 2020), https://www.ipwatchdog.com/2020/10/21/doj-takes-key-step-toward-breaking-big-tech-antitrust-complaint-google/id=126563/.

[11] Jonathan Shieber et al., The Justice Department has filed its antitrust lawsuit against Google, Tech Crunch.

[12] Id.

[13] Adi Robertson and Russell Brandom, Congress releases blockbuster tech antitrust report, The Verge (Oct. 6, 2020), https://www.theverge.com/2020/10/6/21504814/congress-antitrust-report-house-judiciary-committee-apple-google-amazon-facebook.