U.S. v. Google

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Challenging Power, Again

The year was 1998. Bill Clinton was in office. Titanic had just won the Academy Award for Best Picture. The Backstreet Boys were ascendant. And Microsoft was in court, teeing off against the Justice Department over claims that it was a monopoly. That landmark case, which ultimately resulted in a settlement, was the last time the government took a major tech company to trial for antitrust issues.

That will change next week, when the U.S. et al v. Google trial begins in Washington, D.C. The Justice Department (joined by a group of states) has sued Google, claiming that the search giant illegally protected its market position by striking exclusive deals—in particular, one with Apple starting 18 years ago that set Google as the default search engine on iPhones and other devices. This isn’t the department’s only lawsuit against the company, but it is the first to go to trial, and regardless of the outcome, this case signals that the government is serious about investigating the influence that a few companies have consolidated. And it could put pressure on tech firms to proceed more carefully.

The moment is ripe for a Big Tech trial: As tech companies have become more and more powerful, public scrutiny has increased. No longer is antitrust zeal considered merely a left-wing cause; Republicans and Democrats alike are now interested in bringing Big Tech down a notch. The Justice Department’s lawsuit was filed in October 2020, when Donald Trump was still in office; Merrick Garland’s team has since taken over the case. We are also in a time of market concentration. Huge companies such as Amazon, Apple, and Google have amassed immense sway over the past 20 years. (By some measures, Google commands about 90 percent of the domestic search market.) Kent Walker, Google’s president of global affairs and chief legal officer, said in a statement, “This is a backwards-looking case at a time of unprecedented innovation,” adding that “people don’t use Google because they have to—they use it because they want to.” The company has said that its default agreements are not exclusive. The Justice Department did not immediately respond to a request for comment.

Microsoft’s antitrust woes in the 1990s are worth looking back on, both for their similarities to the impending Google trial and for how the internet has changed in the decades since. The Microsoft trial was a dramatic one. Videos of Bill Gates being deposed by David Boies (who would later represent clients including Theranos) reportedly caused a judge to burst into laughter in the courtroom. Not long after the court ruled that Microsoft was a monopoly, in 2000, the company appealed, and the decision was partially overturned. Among the many concerns of the appeals court were reports that the same judge had been bad-mouthing Microsoft to journalists.

An antitrust lawyer named Gary Reback, who pushed the government to take action against Microsoft, became famous in Silicon Valley in the years leading up to the case. He appeared on the cover of Wired in 1997 with the tagline “This Lawyer Is Bill Gates’s Worst Nightmare.” When I called Reback yesterday, he told me that back in the 1990s, Microsoft’s “monopoly was more far reaching and profound than any one single monopolist today.” (Reback has been involved with litigation against Google in recent years.)

Microsoft’s power was indeed massive, and could have grown further. “Imagine a world in which Microsoft had been allowed to monopolize the browser business,” the law professor and former Biden adviser Tim Wu and Democratic Senator Richard Blumenthal wrote in 2018. “Holding a triple monopoly (operating system, major applications and the browser), Microsoft would have controlled the future of the web.” And to some, regulation of the company portended a larger change: Milton Friedman predicted, in 1999, “From now on the computer industry, which has been very fortunate in that it has been relatively free of government intrusion, will experience a continuous increase in government regulation.”

Friedman’s prediction didn’t exactly come true in recent decades—but it still could. However the Google trial plays out, it could well lead these companies toward more caution, as the 1998 trial seemed to do for Microsoft. Lee Hepner, the legal counsel for the American Economic Liberties project, an anti-monopoly nonprofit, told me that the Google trial will be key for understanding whether antitrust laws are equipped to handle monopoly power in today’s environment. (The Justice Department, states, and the Federal Trade Commission have brought a spate of other antitrust cases against Big Tech firms in recent years, and FTC Commissioner Lina Khan is a known critic of tech consolidation.)

No single firm now controls the future of the web. The Microsoft case, perhaps ironically, paved the way for today’s tech giants to flourish: Instead of one Microsoft, we have several companies that each dominate their respective slices of the market. But after years of relative dormancy on antitrust issues, the government’s recent cases may mean the end of these companies’ freewheeling heyday.


Today’s News

  1. Donald Trump notified the judge overseeing the Fulton County, Georgia, election-interference case that he may try to move the case to federal court.
  2. Hurricane Lee is expected to grow stronger as it approaches the eastern Caribbean, and it could become a major storm by early tomorrow morning.
  3. The Trump trade adviser Peter Navarro was convicted of two counts of criminal contempt of Congress.

Evening Read

Illustration by Robert Beatty
Illustration by Robert Beatty

America Is Telling Itself a Lie About Roadkill

By Ben Goldfarb

The great irony of roadkill is this: Its most conspicuous victims tend to be those least in need of saving. Simple probability dictates that you’re more likely to collide with a common animal—​a squirrel, a raccoon, a white-​tailed deer—​than a scarce one. The roadside dead tend to be culled from the ranks of the urban, the resilient, the ubiquitous.

But roadkill is also a culprit in our planet’s current mass die-​off. Every year American cars hit more than 1 million large animals, such as deer, elk, and moose, and as many as 340 million birds; across the continent, roadkill may claim the lives of billions of pollinating insects. The ranks of the victims include many endangered species: One 2008 congressional report found that traffic existentially threatens at least 21 critters in the U.S., including the Houston toad and the Hawaiian goose. If the last-ever California tiger salamander shuffles off this mortal coil, the odds are decent that it will happen on rain-​slick blacktop one damp spring night.

Read the full article.

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Isabel Fattal contributed to this newsletter.

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