Google has avoided the worst-case scenario of being forced to sell off its Chrome browser, but legal experts say the court’s remedies to the Justice Department’s (DOJ) antitrust win could still loosen the company’s grip over online search.
The tech giant, which a judge ruled last year to have illegally monopolized the search market, can no longer enter into exclusive agreements that prioritize its products and must share some of its data with competitors.
While antitrust advocates have dismissed this approach as inadequate, it may still give search rivals an opening, experts said.
“There’s been a tendency to underestimate the impact of conduct-oriented remedies and to think that the only worthy solution is the big bang of a breakup,” said William Kovacic, a George Washington University law professor and former chair of the Federal Trade Commission (FTC).
U.S. District Judge Amit Mehta ruled Tuesday that Google would be allowed to hold onto Chrome, rejecting many of the remedies proposed by the DOJ.
The decision marked a much-needed win for the tech giant, which lost two antitrust cases in the past year. Following the search decision, another federal judge also found that Google had an illegal monopoly over advertising technology.
Mehta’s ruling was cheered by many in and around the tech industry, with longtime tech analyst Dan Ives calling it a “monster win” for both Google and Apple, as the decision appears to permit the iPhone maker to retain its multibillion-dollar deal to make Google Search the default on Safari.
Meanwhile, antitrust advocates lamented that it amounted to a “slap on the wrist,” allowing Google to effectively maintain its monopoly over search. But Kovacic cautioned both ends of the spectrum from getting ahead of themselves.
“That strikes me as mourning and celebrating way too early,” he told The Hill.
While the judge declined to order a breakup, he restricted Google’s ability to enter into exclusive agreements that would prioritize its search engine, as well as its browser and artificial intelligence (AI) chatbot.
“This obviously is not the big structural change that the Department of Justice was looking for, but it’s an impactful decision, even if it’s a bit cautious,” said Paul Swanson, head of law firm Holland & Hart’s antitrust and competition practice.
He underscored the judge’s decision to extend his remedies to Google’s AI. Mehta, who said in his opinion that the emergence of generative AI “changed the course of this case,” barred Google from entering into exclusive agreements related to its Gemini chatbot.
The judge also included generative AI products within his definition of a qualified competitor, which means they will be able to benefit from his data-sharing remedies.
“It seems like Judge Mehta is trying to be narrow in some ways,” Swanson said. “He’s not going to sweep in Chrome and say that that has to be divested. He’s not going to put the Department of Justice in charge of enforcing this judgment.”
“But he is also being a little bit broader than he probably would have been right at the end of the trial to take account of real market dynamics that generative AI chatbots are quickly taking market share away from general search tools,” he continued.
Under the Tuesday ruling, Google is also required to share search index and user interaction data with qualified competitors, as well as provide search syndication services.
Jeff Cross, an antitrust lawyer at Smith, Gambrell & Russell, argued this data-sharing requirement is the “most important element to restore competition.” He suggested Google’s user data is the “fruit” of the conduct at issue and has made its search engine a “superior product.”
“User data improves the quality of a general search engine. Higher quality means more users. More users mean more user data. More user data means higher quality,” he explained, describing it as a “network effect.”
Cross underscored that he has long been skeptical Mehta would take the drastic step of breaking up Google, especially given the judge’s previous writings acknowledging the company’s lawful efforts to compete and that it has the “highest quality search engine.”
“Even a monopolist gets to compete, as long as it’s competition on the merits,” Cross said. “The exclusive contracts were not competition on the merits. So that sort of is consistent with his view that he’s not going to crush Google.”
Google appeared cognizant of the potential impacts of the ruling Tuesday, striking a much more reserved tone than some others in the industry.
While the company touted the judge’s decision not to order a breakup, it also voiced concerns about how his other remedies “will impact our users and their privacy.”
“I imagine they’re somewhat anxious and nervous about that because the industry has unfolded in unpredictable ways,” Kovacic said. “And maybe if you open a path a bit there, maybe that’s all that known and unknown rivals will need to make a great step ahead.”
Despite potentially opening the door to rivals, Swanson argued that Mehta’s decision is not aiming to punish Google.
“There are large portions of society that are less interested in promoting competition and more interested in knocking Big Tech down a notch, they want to see Big Tech suffer,” Swanson said. “This is not an order that is driven by schadenfreude.”
“This is an order that is trying to carefully remove the monopolistic conduct, especially those exclusive deals, and then remove some of the fruits of Google’s monopolistic conduct by forcing it to hand over some of its secret sauce so that others can come back up to where the court roughly thinks they might have been had Google not acted monopolistically,” he added.
