Remedies in DOJ v. Google (Part II): DOJ Crosses the Rubicon

Last week, the Department of Justice (DOJ) filed an initial proposed final judgment in the DOJ v. Google search case. Despite what are, as we previously explained, clear lessons from history about both the dangers of breakups (AT&T) and the adequacy of narrowly tailored conduct remedies (Microsoft), DOJ has proposed not just breaking up Google, but conduct remedies that go well beyond what is necessary to prohibit the behavior found to be anticompetitive by Judge Mehta, restore competition, undo ill-gotten gains, or prevent further violations. Instead, DOJ has doubled down on the punitive approach outlined in its proposed remedy framework to effectively weaponize antitrust relief against Google in a way that risks crippling one of America’s most innovative and successful companies.

First, the agreements proscribed by DOJ’s proposal exceed the sort of browser and Android Original Equipment Manufacturer contracts that Judge Mehta considered anticompetitive exclusive dealing. They include not just bundling and tying arrangements that involve search, but also transactions that would entail Google “owning or acquiring any investment or interest in any search or search text ad rival, search distributor, or rival query-based AI product or ads technology.” However, neither category involves exclusive dealing, which is the conduct that relief should target—just not any potentially anticompetitive agreements involving search.

Next, to prevent Google from “self-preferencing,” DOJ requires that Google divest Chrome and (as if that were not enough) not have any browser at all for a five-year period. And yet, here again, there was no allegation by DOJ—let alone finding by Judge Mehta—that Google engaged in anticompetitive self-preferencing, such as by leveraging its position in Chrome to maintain its search monopoly or vice versa. In fact, rather than “restore competition” in search, such a remedy will have the perverse effect of limiting browser competition and, as such, hardly the least restrictive option for DOJ to suggest.

DOJ’s fixation with fighting “self-preferencing” to restore competition also motivates its contemplation of a divestiture of Android if the related behavioral remedies imposed on Google are deemed ineffective. These remedies include the imposition of a “choice screen,” whereby Android users would choose their search engine in lieu of having one pre-installed, or an outright divestiture of Android if DOJ isn’t satisfied. However, in Europe, the choice screen approach has already been tried and found wanting toward “restoring competition.” At bottom, users will prefer to use Google search independently of the extent to which it and Android are tightly integrated.

In addition to these structural prohibitions, DOJ’s initial proposed final judgment also includes broad conduct remedies designed to prevent Google from unilaterally self-preferencing its search product. But here, as DOJ cannot attempt to generally justify its relief in terms of restoring competition by opening up key distribution channels (i.e., Android, Chrome), it instead argues that “an effective remedy must also ensure that Google cannot circumvent the Court’s remedy.” However, this prophylaxis upon prophylaxis approach to antitrust relief far exceeds any justification to restore competition. It is merely a way for DOJ to ban behavior that it did not dare challenge in court: not only does self-preferencing benefit consumers, but it enables procompetitive efficiencies for Google, which, of course, does maintain search (and Android) platforms that are broadly open to competitors.

DOJ’s proposed remedy is also littered with requirements for Google to share data and technology with rivals—yet again, despite that Judge Mehta did notfind Google to have engaged in any anticompetitive refusal to deal (i.e., SA360). For example, DOJ would require Google to “make its search index available at marginal cost” and “provide rivals and potential rivals both user-side and ads data…at not cost, on a non-discriminatory basis, and with proper privacy safeguards in place.” However, while DOJ no doubt believes that access to such “scale-dependent data inputs” will help restore competition, the type of “enforced sharing” contemplated by DOJ is an invitation to turn the court into a “central planner,” which the Supreme Court has warned is ”a role for which they are ill-suited.”

Another measure in DOJ’s initial proposed final judgment that is designed to help Google’s competitors under the pretext of fostering competition would require Google to syndicate “its search results, ranking signals, and query understanding information.” Although this would undoubtedly be a boon to Google’s search competitors, not every means of helping rivals compete admits a significant causal connection with the underlying anticompetitive conduct. Indeed, nowhere in Judge Mehta’s nearly 300-page opinion was there any discussion of how syndication would “remove barriers to entry, pry open the monopolized markets to competition, and deprive Google of the fruits of its violations.” Put simply, fashioning antitrust relief does not give DOJ carte blancheto do whatever it wants in the name of providing redress for anticompetitive behavior.

Finally, several provisions in DOJ’s initial proposed final judgment seek to limit Google’s ability to compete in artificial intelligence (AI). For example, DOJ would require Google to provide publishers with the option to opt out of having their content used “to train or fine-tune AI models, or AI products” or “displayed as AI generated content on its [search engine results page].” Not only does this particular provision seem to have nothing to do with DOJ’s case—or even preventing exclusionary conduct at all—but Judge Mehta specifically found that AI was not a competitive constraint on Google’s search engine, which raises the question of precisely how DOJ’s relief targeting AI is connected to remedying monopolization in search.

Thinking about DOJ’s remedies proposal concerning AI also helps to put it in a broader, albeit no less troubling, perspective. While the United States is engaged in a competition with China for global techno-economic leadership, which will critically depend on who wins in AI, DOJ has decided to use its very fortunate victory in court (for now) to effectively destroy Google—the company that China may very well fear the most—by chopping off two of its core businesses and turning what’s left of the company into an almost de facto public utility. The DOJ’s attempt to create multiple search platforms is at odds with the network effects that characterize the industry. But with a new administration incoming, there is a considerable chance that DOJ will abandon this neo-Brandeisian mentality and adopt a new policy of using antitrust to support American innovation, competitiveness, and consumers.