Breaking Down the DOJ’s Anti-Consumer Case Against Google

There is good reason for the hype surrounding the antitrust trial against Google that formally commenced in federal court on September 12, as it is arguably the most significant monopolization case against a tech company since the government took on Microsoft more than 20 years ago. The complaint, filed in 2020 by the U.S. Department of Justice and joined by several state attorneys general, alleges that Google has illegally enhanced its dominant position in internet search and ads.

However, merely developing a product that becomes the dominant player, even a monopoly, in one’s market is not illegal under antitrust law. The government must prove that Google inappropriately leveraged its market power in a way that not only advantaged itself but also harmed consumers in some way, whether by charging higher prices, producing lower-quality products or artificially suppressing competition.

One of the government’s key allegations against Google is that its business deals, in which it paid for its search engine to be the default for many browsers and devices, illegally disadvantage competitors to the detriment of consumers. If upheld, this objection would set a troubling precedent for antitrust policy in general. That Google’s search engine is the default option on many mobile devices and browsers does not make their position exclusive—switching to other search engines is but a few clicks or taps away.

In addition, rivals such as the $2.5 trillion Microsoft have the resources to try to outbid Google for these default search deals. But as it turns out, consumer preference is important—and consumers still tend to prefer Google’s search engine over competitors. For example, Microsoft’s devices all come loaded with Bing as their default search engine, yet as recently as 2021, the top search on Bing was “google.”

Thus far, the government has largely failed to provide evidence that but for these Google default deals, its competitors would have taken over those shares of the market. Instead, they are essentially left to argue that Google has simply competed too well by creating a product that everybody uses. The government’s own actions suggest they are aware of their vulnerability on this front, as they filed a pair of pretrial motions (which were rejected) that attempted to limit Google’s ability to present product improvement or economic benefits to consumers as counter-evidence.

Should Apple, Samsung or Mozilla have been forced to choose a lesser product as their default search service, potentially for less money? Should Google have been barred from competing in these deals, even if its product is superior? It is difficult to see what benefit such an outcome would have provided to consumers.

Even the basic assertion that Google possesses a monopoly on search is no longer a slam-dunk case in light of the evolution of digital markets in the past decade. Internet users—younger users in particular—increasingly use social media platforms to search the internet. Generative artificial intelligence, such as ChatGPT, represents another threat to traditional search, especially as it integrates with rival search engines like Bing. And retail rivals like Amazon have dominated Google in product searches for many years now.

Ultimately, the current case against Google seems to represent concerns about advantaging competitors over those of protecting consumers and is unlikely to be persuasive under existing antitrust laws.