The heated antitrust battle between Google and the U.S. government is set to conclude in the coming days. It’s been a whirlwind 10-week bench trial, full of high-profile testimony, stunning revelations of backroom deals, and court-sanctioned secrecy. The crux of the government’s argument is Google struck anticompetitive deals with Apple and other phone manufacturers to make their search engine the default on mobile devices and gain an unfair advantage for its search advertising business.
The stakes couldn’t be higher for Google, the fourth most-valuable company in the world. An unfavorable ruling for Google could bring financial penalties, and force behavioral changes like an end to aforementioned deal-making, or structural relief—a fancy term meaning that, in a drastic measure, the judge could break up the company.
We won’t know the outcome of the case for months, but the DOJ saga (which has been dubbed the antitrust trial of the century), isn’t an isolated incident for Google. The internet giant is facing a litany of challenges to its market dominance.
In federal court in San Francisco, a jury is hearing a separate case brought by Epic Games, the maker of the popular game Fortnite, over Google’s mobile app store policies. Epic, which previously lost a court fight with Apple over similar claims, says Google operates an illegal monopoly and stymies competition on its platform.
Then, early next year, the Justice Department will face off with Google’s lawyers in a separate antitrust suit focusing on the company’s advertising technology.
Google is far from the only big technology company fending off antitrust challenges from regulators in the U.S. and abroad, or from litigious competitors. Rather, its year in court exemplifies a changed tide in antitrust litigation—and the enormous stakes for any large tech company fending off these challenges.
In 1998, the U.S. Justice Department sued Microsoft, alleging that it violated federal antitrust law by restricting the ways Windows customers could use web browsers beside its own—Internet Explorer. It was a textbook monopolization case in which a dominant player in one industry (operating systems) illicitly uses its market power to gain an unfair advantage in another industry (web browsers).
While the government prevailed in district court, it faced a setback in the appeals court, and eventually settled with Microsoft in 2001. But two decades later, U.S. v. Microsoft is still one of the key examples of a monopolization case brought against a large technology company.
But in recent years, a growing movement has placed antitrust at the forefront of regulating Silicon Valley’s largest firms, which have become among the most valuable and powerful companies in the world. Justice Department antitrust chief Jonathan Kanter and Federal Trade Commission Chair Lina Khan, the two Biden antitrust enforcers, exemplify a new movement not only to rein in Big Tech but also to redefine antitrust law to be about more than merely price hikes for consumers. They’re tackling the biggest question in the field: How does antitrust law apply to services that are largely free for consumers?
Michelle Meagher, cofounder of the Balanced Economy Project and a former government competition lawyer in the U.K. and the U.S., says we’re in a “critical moment” because the antitrust laws are finally “being used for their intended purposes.” But she doesn’t think even this amount of litigation is adequate, considering the size and power of companies like Google.” To a large extent, Google and other Big Tech companies in their current configuration may be ungovernable, or Too Big To Regulate.”
Google is fighting many different battles in part because it’s so dominant in so many sectors. It’s a leading company in search with its namesake engine, desktop web browsing with Chrome, mobile operating systems with Android, social video with YouTube, as well as cloud computing and programmatic advertising. But it also has major businesses in navigation, productivity, smart homes, wearables, music streaming, and artificial intelligence.
While drastic remedies could come from any of these cases—and search, mobile apps, and advertising are three of its most crucial businesses—Google’s empire is more sprawling than any one industry.
In that way, antitrust law is best thought of as a “scalpel,” says Diana Moss, vice president and director of competition policy at the Progressive Policy Institute. In other words, it’s best used to narrowly address harms in a given market—not to deal all at once with the enormity of a big company.
“For Google, it’s a serious moment,” Moss said, “but I do think that this is part of doing business. Dealing with competitive concerns and complaints and allegations is absolutely a part of doing business as a large company.” The real question, she said, is how much external pressure on Google would change the way it does business.
That’s what happened in the Microsoft case, according to Mitch Stoltz, who leads the competition policy working group at the Electronic Frontier Foundation, a digital rights nonprofit. While the case did not lead to a seismic breakup like the AT&T case in the early 1980s, it may have fundamentally altered the company’s ambitions.
“The combination of the chastisement and the ongoing monitoring that was part of the agreement that ultimately settled that case significantly changed Microsoft’s behavior and that did contribute to allowing a new generation of tech giants to arise,” Stoltz says. While Microsoft is still one of the most valuable companies in the world, much of its business has shifted to business-to-business sales rather than consumer-focused products.
And the powerful browser Internet Explorer, once the focus of antitrust litigation, is now a blip in history: Microsoft retired the name in 2022 and maintains a paltry presence in web browsing with a separate browser called Edge. Of course, the dominant player in that sector is now Google—perhaps the beneficiary of a past iteration of aggressive antitrust enforcement, now reaping the consequences not of its success but what it allegedly did to maintain success.
