Google, antitrust, and the myth of choice

Jesse Hirsh

easyDNS is pleased to sponsor Jesse Hirsh‘s “Future Fibre / Future Tools” segments of his new email list, Metaviews

Is this current attempt to reign in the search giant doomed to fail?

What is the nature of Google’s monopoly and how should it be regulated or ended?

Until now that’s largely been a theoretical question, however the US Department of Justice has turned it into a political one with less than two weeks before election day.

As alleged in the Complaint, Google has entered into a series of exclusionary agreements that collectively lock up the primary avenues through which users access search engines, and thus the internet, by requiring that Google be set as the preset default general search engine on billions of mobile devices and computers worldwide and, in many cases, prohibiting preinstallation of a competitor. In particular, the Complaint alleges that Google has unlawfully maintained monopolies in search and search advertising by:

  • Entering into exclusivity agreements that forbid preinstallation of any competing search service.
  • Entering into tying and other arrangements that force preinstallation of its search applications in prime locations on mobile devices and make them undeletable, regardless of consumer preference.
  • Entering into long-term agreements with Apple that require Google to be the default – and de facto exclusive – general search engine on Apple’s popular Safari browser and other Apple search tools.
  • Generally using monopoly profits to buy preferential treatment for its search engine on devices, web browsers, and other search access points, creating a continuous and self-reinforcing cycle of monopolization.

This is a significant event when it comes to potential regulation and antitrust measures, and instantly shifts the larger conversation to proposed solutions rather than debating the concept of whether the digital platforms are monopolies.

However these actions are also part of a larger political process, that seeks to frame the response to these monopolies in specific ways that could undermine the broader attempts to regulate or break them up.

The states that joined the federal Justice department in this lawsuit are all led by Republican Governors and Attorney Generals.

However that doesn’t mean that this isn’t bi-partisan, as Democrats are also in favour of antitrust action.

The difference however is in the details, which at this point represent pre-election posturing, and while there may be more debate in the next two weeks, the real battle will come in the months and years to come.

While there is some criticism of the timing of this legal action against Google (which we’ll touch upon below) it does not preclude additional actions. Other Democratic Party led states may file their own antitrust lawsuit.

The appropriate analogy may be lilliputian rather than David vs Goliath, i.e. many attempts to tie down and sever the giant rather than a single shot to the head.

As with most antitrust actions, part of the process is historical, as the case (and the public) scrutinize the company’s past (abusive) actions with a view on how best to counter or prevent them in the future.

However this is where framing is important. Google is a massive company, and while they may seem relatively young, there is a depth of details to their rise that is both significant and potentially misleading. Part of this reflects the need for this case to be political, and therefore comprehensible to the public. It has to connect with the average user, and appeal to their own sense of justice.

This is partly why a major focus of this particular lawsuit will be consumer choice.

This begs the question, do you choose to use Google? If so, why? What would make your choice fair, or what would cause you to choose otherwise?

Personally I feel that choice is relevant, but also a kind of distraction. Choice is about context, and the larger question is what or who are we choosing between? What is the basis by which we’re making this choice?

One answer might be privacy and data protection.

Gabriel Weinberg is the CEO and founder of DuckDuckGo, a rival search engine that is privacy centric. They make a decent argument as to why there should be more choice when using search, especially given the larger frame or context that choice enables.

He also argues that greater choice, especially when made easy on android smart phones, could lead to a significant disruption of the market and increased competition.

While I’m not entirely convinced that the concept of choice is the right way to approach the power these monopolies have, I do agree that it would enable greater competition.

I suspect the digital monopolies agree, and in response are rapidly attempting to counter or pre-empt any action, especially potential breakups.

However part of why I think choice is the wrong hill to fight this battle is that it is an easy argument for the monopolies to counter. Google did so rather quickly this week, releasing this response shortly after the lawsuit was announced:

The company rightly argues that there are a wide range of opportunities and places for us to choose to use them or alternatives.

The issue is not choice precisely because choice doesn’t matter. It doesn’t matter how you choose, the house always wins. It’s not whether you win or lose, but that you play the game in the first place. That your data is harvested, or even if it isn’t, that you keep clicking and continue spending time online. There’s no difference between Coke and Pepsi if you’re in the sugar business.

Which is why we should be suspect of the politics driving this attempt at antitrust.

To what extent is this a show coming from the top rather than a solid case coming from staff?

Justice Department officials told lawyers involved in the antitrust inquiry into Alphabet, the parent company of Google and YouTube, to wrap up their work by the end of September, according to three of the people. Most of the 40-odd lawyers who had been working on the investigation opposed the deadline. Some said they would not sign the complaint, and several of them left the case this summer.

Some argued this summer in a memo that ran hundreds of pages that they could bring a strong case but needed more time, according to people who described the document. Disagreement persisted among the team over how broad the complaint should be and what Google could do to resolve the problems the government uncovered. The lawyers viewed the deadline as arbitrary.

While there were disagreements about tactics, career lawyers also expressed concerns that Mr. Barr wanted to announce the case in September to take credit for action against a powerful tech company under the Trump administration.

While this does suggest that the case is not as strong as it could be, perhaps Barr is also right in thinking we’ve waited long enough.

Actually, the time to do anything substantive about the overwhelming power of the giant tech companies was very long ago. Instead, state and federal governments — on both sides of the partisan divide — charged with protecting small businesses and encouraging innovation did squat.

The action taken on Tuesday is akin to closing the proverbial barn door not only after the horses have left, but also after those now billionaire horses have trampled over key parts of the economy and society.

While I generally agree with this sentiment, as a horse owner, I now hate this metaphor. At our place, we want the barn door closed, because we don’t want the horses to get in and trample what’s inside. Or as per the metaphor above, if the horses have trampled key parts of the economy and society, we want the barn door closed so they don’t trample government and its regulatory apparatus.

This is why moving forward, the antitrust debate is not just about the future of the digital monopolies, but also the future of government. The legitimacy and power of all parties cannot be taken for granted and is certainly up for debate if not part of the gamble in this high stakes antitrust poker game.

The following observation is a symbolic example of how much has changed and why this current episode is so political, as it partly hinges upon the court of public opinion (which as we know is hosted by the digital monopolies):

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