The Google antitrust search trial began on Sept. 18 in the U.S. District Court for the District of Columbia. This case represents one of the most significant joint antitrust enforcement efforts between the U.S. Department of Justice and 50 state attorneys general.
It is unprecedented for that number of state AGs to come together in a bipartisan antitrust enforcement effort. I was privileged to help lead this important effort up until the time I chose to leave office in January 2023.
Some conservatives have criticized our participation in and leadership of the Google AG coalition. Included in their critiques are charges that our case is backward-looking and somehow dated (as if all litigation is not by definition about the past; after all, we do not prosecute murders yet to take place). Of course, Big Tech companies fund many of these critics, including Google, as has been well documented elsewhere.
Let us assume, however, that their criticism is sincere and pose the question: Why did I and others invest time and resources in the Google case? The answer is simple. Contrary to the criticism against it, the Google case is about nothing less than the future of the internet. The case is about the future of American consumers’ privacy and control of their data.
Big Tech’s Control of Personal Data
Many attorneys general first learned of Big Tech’s control of enormous quantities of consumer data in a 2018 meeting with tech industry experts. They demonstrated the ways in which large tech companies gather, monetize, and manipulate personal data at the cost of accuracy and consumers’ privacy.
With Google, the case is relatively straightforward. First, it is no secret that Google has a durable monopoly over general search online. The company has controlled approximately 90 percent of the search market and related advertising revenues for well over a decade. Simply having a monopoly does not violate our antitrust laws. But monopoly conduct to control the vast majority of consumer data through exclusionary contracts, as opposed to fair competition, does.
In Google’s case, the monopoly conduct in question concerns the ways in which it has created a stranglehold on the general search market through exclusive dealing agreements with cell phone carriers, handset manufacturers, and others. In just one agreement, Google pays around $19 billion annually to Apple to ensure that Google is the default search engine on all Apple handsets. This number tells you exactly how valuable the accumulation and control of search data is to Google’s business model.
Big Tech, Not Government, Regulates Privacy
These defaults are powerful, and they ensure that Google has a stranglehold on online data. Put simply, he who collects the data controls the market. He who controls the data also controls consumer privacy online and, absent competition, becomes the nation’s de facto privacy regulator.
For American consumers, this means that in reality, their privacy regulators are not their elected federal and state governments but rather the all-powerful Big Tech platforms, including Google. Americans have the Fourth Amendment to protect their privacy from government tyranny, but it has become increasingly clear that there is very little protecting their privacy from private tyranny in the form of Big Tech monopolies.
In this spirit, my AG colleagues and I opened an investigation into Google in 2018. A bipartisan coalition of AGs announced in 2019 our decision to pool resources in investigating Google, culminating in a complaint we filed alongside the DOJ in late 2020.
This brings us back to the D.C. District Court in 2023. There are no easy fixes before the court in the Google case, but I would submit that the surest way to break up Big Tech’s control over Americans’ data and data privacy is to curb its control of the collection and use of the data in the first instance.
Opening the Tech Market to Competition
Imagine a world in which not every Apple phone defaults to Google search. Consumers would be free to choose whether to share their personal data, and if so, where that data goes, teeing up competition in privacy as well as other dimensions of competition.
If you think this competition matters today, then imagine a world in which AI has become ubiquitous and fully mainstream. As things stand, the Big Tech platforms are poised to control AI’s future because they control the all-powerful datasets needed to train future AI applications.
As The Economist recently explained, AI is poised to build a moat around existing Big Tech monopolies, not disrupt them. The same holds true for quantum computing, which is the next technology on the horizon. Both AI and quantum computing will arise without meaningful public policy guardrails in place.
As Congress Stalls, Courts Must Act
Sure, the Senate under Majority Leader Chuck Schumer, D-N.Y., says it is looking into drafting legislation that would place guardrails on AI. But why wait for the Senate? After all, the same Senate sat on Big Tech antitrust legislation in the last Congress, despite the bills having strong bipartisan support. The future of the internet lies far more in the hands of a district court judge in the Google antitrust litigation than it does in the hands of the Senate.
Many agree that the Microsoft case in the ’90s, based on very similar antitrust allegations to those in the Google case, created a much more competitive market for internet services. As a result, nascent companies like Google and Facebook were allowed to enter the market to compete on a level playing field.
The future of the internet and consumers’ ability to control the use of their data is not a conservative or liberal issue. It is a matter of the individual’s right to control his or her own data.
Limiting Google’s ability to monopolize the market on data collection will also allow for free and fair market competition and innovation, while providing guardrails on the collection and use of that extremely valuable commodity known as consumer data.
