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By Joel Thayer
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The Google Search results are in. No, not that kind of search result—the ruling in the D.C. District Court case United States v. Google, which asks what to do with Google's illegal monopoly on internet search traffic.
This case had all the makings of a summer blockbuster. Indeed, the previews were spectacular, with Judge Amit Mehta holding quite concretely last year that "Google is a monopolist, and it has acted as one to maintain its monopoly." That opinion sent shockwaves throughout the tech community and Wall Street.
Increasing the heat, Donald Trump's Department of Justice (DOJ) called for strong remedies that would have done a lot to quell the concern. The DOJ asked Google to divest from Chrome and Android; share search data with competitors to help them scale up; enact measures to prevent self-preferencing; and stop paying Apple for default status on its Safari browser—the second-largest mobile browser outside of Chrome.
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The anticipation of Judge Mehta's follow-up decision, released September 2, led many to anticipate that "the case could change how tech giants are able to do business and, in effect, how the internet is run." Others made grand comparisons to the U.S. breaking up AT&T in the '80s. Several outlets and pundits claimed the outcome of this case would "break up" Google.
So...did it?
...
Not exactly. Instead, Judge Mehta took us from blockbuster to lackluster by page 3 of his 230-page opinion. The judge's ruling, in essence, only requires Google to share some of its data with competitors in a narrow set of circumstances and imposed some restrictions on their exclusive dealings. Even though this ruling is a positive, incremental step forward in a case very few expected the DOJ to win in the first place, these measures will hardly address the full breadth of the harms to competition and consumers Google's monopolization causes.
But Google wasn't the only winner. There is another major beneficiary: Apple. To start, the court made clear that Apple can continue extracting $20 billion a year from Google to make it Safari's default search engine so long as it's not totally exclusive. Not a tall ask. In fact, Apple has continued negotiations with Google to have its AI model power Siri to rival OpenAI's ChatGPT or Perplexity AI. Now Google can have Apple help it dominate the AI market, like it did in the search market, while Apple collects money hand over fist from Google.
So not only did Google walk away with a slap on the wrist—this opinion also propped up another monopolist, Apple, that is currently getting sued by the very same DOJ.
To be very clear, this has nothing to do with the men and women at the DOJ failing to do their jobs. Throughout the opinion, Judge Mehta goes out of its way to say that the agency fully demonstrated Google's liability under our current antitrust laws. For instance, he says the DOJ proved that exclusive default agreements—such as Google's agreement with Apple—"allowed Google to persistently widen the data moat, ensuring that rivals could not achieve a degree of quality that would pose a threat to Google." Judge Mehta even says that they "also discouraged investment by existing market actors and new entrants."
But, if that's true, why not prohibit the practice altogether? Also, why issue a remedy that doesn't ameliorate the concerns that the judge agrees exists—or, worse, help another Big Tech company get even bigger?
The answer, according to the judge: "a healthy dose of judicial humility." In layman's terms, Mehta is either saying that the law just doesn't allow him to go that far, or he doesn't want to. His invocation of "humility" is odd here, given that he expressed almost none when forecasting on AI's technological trajectory. So even if we have Google dead to rights violating our laws, the judge's hands are tied.
There's one thing this case proves for sure, however: Congress may need to step in to address these issues.
Fortunately, there is a strong bipartisan chorus calling for real antitrust reform.
Earlier this year, Senators Mike Lee (R-Utah) and Amy Klobuchar (D-Minn.) reintroduced the AMERICA Act, which promotes competition in digital ad markets by preventing conflicts of interest in digital advertising transactions.
Senators Lee, Klobuchar, Marsha Blackburn (R-Tenn.), Dick Durbin (D-Ill.) and Richard Blumenthal (D-Conn.) reintroduced their Open App Markets Act, which would release Apple and Google's herculean grip over the mobile app store market. It gives small developers the ability to push back on their anticompetitive terms, such as their collection of 30 percent app store rents, and allow consumers to choose which app stores they want to use.
Better yet, this case may have even pushed Senators Klobuchar and Chuck Grassley (R-Iowa) to reintroduce their American Innovation and Choice Online Act, which directly addresses the issues in this case.
In sum, Big Tech may feel at ease for now, but the war to bring actual equity to markets and promote true consumer welfare is far from over.
Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C.
The views expressed in this article are the writer's own.
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