With so much reining ink spilled in big tech, so many Silicon Valley executives called to Washington, so many government agencies with so many complaints, it was a fair question if anyone would ever do something – and if so, what. But now they have. The antitrust lawsuit filed this month by the US Department of Justice and eleven attorneys general against Google marks a milestone: a specific plaintiff with a specific complaint against a specific company.
Antitrust lawsuits are notoriously difficult to win. Regardless of the outcome, however, they can reshape industry structures, markets, and even technologies that emerge on the other side. For this reason, it is important to ask five key questions now.
Do we agree on what we mean by “antitrust law”?
Not really. Gone are the days of Standard Oil, the laws of the Clayton and Federal Trade Commission in the early 20th century, and the golden era of antitrust lawsuits from 1940 to 1970 when competition was seen as an antidote to fascism.
Today's antitrust law exists between two schools. The first, which has prevailed since the 1960s, looks at consumer welfare implications as a litmus test for determining monopoly. The other, a more recent interpretation, goes even further, arguing that the underlying structure of the market matters, and even the potential that powerful players can harness is a violation of broadly defined antitrust objectives. In fact, the litmus test for this second school is the impact not just on consumers, but on everyone involved: employees, suppliers, potential competitors, and more.
The second school seems to be gaining ground. Just over a year ago, 181 CEOs, all members of the Business Roundtable, declared their commitment to all stakeholders. The declaration hasn't done much so far, and neither Google nor its parent company Alphabet are signatories. However, it shows that the American public's expectations of the best-known companies are changing. Now, the case of Google, which claims the company has wrongly banned its search engine as the default option for smartphones and browsers, causing disadvantages for competitors, new entrants and others affected by the ranking of search results on Google, could be a milestone on the way to domination over the more expansive view of antitrust law.
Is Google the new Microsoft and was Microsoft the new …?
No, and while we're at it, none of them are Standard Oil, the centuries-old analogy that is worked out in every cartel case. To bring the point home, Standard Oil has even been described as "Google of its time" and the Google case as "almost a copy" of Microsoft's 1998 – all by those who should know better. Analogies are useful in making arcane topics more accessible to the general public, but it is dangerous to call them a precedent or guide for policy making.
Such analogies can be misleading for many reasons. Breaking Standard Oil was different than breaking Google. At the turn of the century, the oil industry was technologically stable. Until you act on today's technology giants, technology has evolved. In other words, a slow antitrust effort could solve a problem caused by a technology or application that is out of date.
The Microsoft analogy also fails. In this case, it was about bundling Microsoft's Internet Explorer with its hardware. While this technology didn't have strong dependencies on Microsoft's operating system, Google's other features make Google's search engine more effective, and the web of deals that Google has made with Apple and others helps suck in more data from users.
In turn, it is difficult to draw lessons from these historical analogies in order to interpret today's problem or to find solutions that are appropriate to the present and future of the industry.
Does the proverbial pig fly over Washington? After all, is there a non-partisan consensus on at least one topic: Reining in Silicon Valley?
One of the breakthroughs associated with the anti-tech sentiment is its obvious bipartisan nature at a time of polarization. Indeed, a real consensus would be welcomed, given the real possibility that a new agency – along the lines of the Federal Communications Commission or the Food and Drug Administration – will have to be created to properly regulate big tech. In order to create an effective one, the legislature would have to take action.
However, the reality of party political cooperation is more nuanced. The House set out antitrust law at length in a 450-page report detailing the reasons for limiting Big Tech's monopoly. These efforts are led solely by Democrats. In parallel, the Senate investigation into the power of Big Tech is an entirely Republican-led operation.
Far from working together on a coherent approach to solving the problems, the political parties are following separate paths with different motivations. Republicans seem to be focusing more on social media platforms using their power to curb conservative voices. Democrats speak of a "glass steagall for the Internet," referring to the laws that forced banks to separate their business and investment banking activities to ensure that the combinations didn't dampen competition. In a technical context, this could mean that social media companies are forced to operate their platforms separately from applications and companies that benefit from user data. Such extreme measures can raise concerns among many Republicans about government overreach.
An example of the persistent distance between the parties is the lawsuit against Google itself, which until now has been brought only by Republicans. Some critics claim it was rushed ahead of the US election to ensure that action was taken even if the Republicans were lost.
Bottom line: If you are hoping for a smart, forward-looking bipartisan settlement on a regulatory system, keep your expectations in check and keep pressure on lawmakers to work together.
Will this lawsuit lead to the holy grail: giving consumers rights to their data?
Ultimately, the only way to really check the performance of Google or any other tech company is to give consumers the option to transfer their own data. The digital agency is therefore the holy grail of antitrust law. This could mean that consumers have rights to their personal data, manage access to that data and possibly be compensated for that access. With this power, consumers are in a better bargaining position with the tech giants, no matter how big those giants are.
However, the process brought against Google is remarkably narrow: it is merely alleged that the company's contracts with device manufacturers to prioritize the Google search engine are exclusive and give Google an unfair competitive advantage. Given the numerous and deeper concerns about big tech, this seems almost insignificant.
The narrow focus makes sense as a legal strategy: a specific fee with larger issues and additional fees that add leverage for later negotiations. From a societal perspective, however, we shouldn't rest until there is an endgame strategy to give users this digital agency.
The digital agency would create data similar to other forms of personal property: a house, a bank account, or even a cell phone number. Getting there will be difficult for three reasons: Consumers don't seem to care enough about taking action themselves. There are many competing solutions with no clear winner. and ultimately it is difficult to define what personal data is that belongs exclusively to one person. It is time to stop making the Google lawsuit the linchpin until we see an endgame strategy being worked on.
Waiting. Have we forgotten that there is a pandemic at large?
It is ironic that the first major antitrust move against technology comes after years of inactivity and even after a year in a year when consumers huddled in their homes, relying on tech products for remote work, schooling, health care and personal connections have to leave . Experience over the past few months has revealed the many problems that arise from inequalities in reliable access to the Internet. The Google lawsuit only focuses on the inequalities between Google and its competitors. But we can certainly agree that inequalities in school, healthcare and remote working are far more consistent.
Among the many lessons of the pandemic, we should recognize that internet access is a necessity – not a luxury. Any action against Google or others should focus on this fact in the process of reaching an agreement. Today about half of the US population does not have adequate internet access, which should be viewed as a national crisis. It helps that Google is in the internet access business. From a purely business perspective, this business – the Google Fiber Project – can be a failed experiment. However, the launch of Google Fiber has kicked off the action of established Internet access providers, retired telephone and cable companies, and even new low-Earth orbit satellites and "solid wireless" outfits for remote areas.
A major lawsuit can be used to convince Google to invest in the access gaps and encourage others to fill the gaps. Ultimately, Americans should care less about the fact that Google's reviews reach us before Yelp's. A responsible policy maker should first ensure that everyone in the US has access to online reviews in the first place. Or forget about the reviews. Every child in the United States should be able to attend an online school or be seen by a doctor with telemedicine if necessary.
It's all too easy to google Google Antitrust and find an ongoing jeremiad about the evils of big tech and how the government should do something. It's too easy to devise a tight legal strategy to rush through a lawsuit just before an election. It's too easy to get tech CEOs in front of convention and bleachers in front of cameras. Now is the time to ask more difficult questions. We can't be afraid to ask them just because the answers aren't easy. The lawsuit has already been billed as "huge and historic," "the largest cartel case of a generation," and "opening salvo" in the fight against big tech. Let's make sure the opening salvo ends with efforts to start the hard work to make the Google economy work for everyone.