Google’s Search Antitrust Remedies Have Clear Parallels to Earlier Tech Case

On Tuesday, a federal judge ordered Google to share some search index and user data with “qualified competitors”—part of a highly anticipated slate of remedies in a monopoly case that the Justice Department won against the tech giant in August of 2024.

The ruling, issued by Judge Amit Mehta of the U.S. District Court for the District of Columbia, also prohibits Google from inking exclusive contracts that condition payments or licensing for its search engine and other products, including Chrome, Google Assistant, and the Gemini app. 

The decision spares Google from the harsher remedies proposed by the U.S. Justice Department, which included a divestiture of the Chrome browser and more robust data-sharing with rivals. 

The remedies in many ways mirror the last major monopoly ruling against a U.S. tech company more than 20 years ago, when a federal judge ruled that Microsoft illegally leveraged the market dominance of its Windows operating system to stifle competition in the browser space. The DOJ and Microsoft reached a settlement in 2001 in which Microsoft similarly was ordered to share its APIs with third-party developers and was banned from entering into exclusive deals with PC manufacturers and software developers.

The Microsoft case is often cited as an example of how modest remedies can leave a company’s dominance largely untouched. Opening up some of Google’s search data could give rivals more power, especially in the growing AI-powered search market, just as new applications grew after the Microsoft ruling. But keeping the company intact, including deals that favor Google’s own products, shows that the goal was to take a scalpel to only what the court saw as the most egregious anti-competitive behavior, experts told ADWEEK.

“Basically, if you’re going to have a really strong remedy, you need really strong evidence that this is the cause of the problem,” said Brian Albrecht, chief economist at the International Center for Law & Economics. “Grounding all this in Microsoft as the reason, [Mehta] found that there wasn’t enough evidence for a strong structural remedy—splitting off Chrome or something like that—but there was enough causal information to connect these default agreements to the monopolization of the market that the lighter remedies were justified.”

In both cases, the court chose not to require a breakup of the company’s business even as the U.S. government argued for one. In Microsoft’s case, the court said it could not establish a solid causal link between the company’s behavior and the operation of the monopoly.

“The DC Court of Appeals in the Microsoft case set out a stepwise burden-shifting approach to determine what is an anti-competitive act, and Judge Mehta followed it,” said Jeff Cross, counsel with Smith, Gambrell & Russell. 

In the Google Search case, while Judge Mehta indicated that there was a causal connection between Google’s default search arrangements and its monopoly maintenance, he argued the connection was not strong enough to require a breakup of Google. 

One antitrust expert noted that this approach to issuing remedies is uncommon.

“The DC Circuit has this idiosyncratic opinion where they said, basically, ‘You’ve got to have a really strong causation finding before you can do a structural remedy,’ which, as far as I can tell, has not ever been said in any other case” besides Microsoft, said John Newman, a leading antitrust expert and a chair at the University of Memphis School of Law.

“[Mehta] just was not even willing to entertain a spin off of Chrome, let alone Android,” Newman said.

Opening up data to rivals

The remedies ordered against Google are very similar to those taken against Microsoft at the beginning of the century, with some notable differences.

Google secured exclusive rights for some of its products to be the default option on devices, but it did not forbid device manufacturers from allowing users to install other browsers or search products. Microsoft, on the other hand, did not allow rival browsers or middleware to work on its operating system whatsoever. Because Microsoft was more exclusionary in this right, the court barred it from entering into any kind of exclusive contracts with PC makers, internet providers, or software developers that would hamper the use of rival browsers or middleware.

The court’s data sharing requirement is another Microsoft lookalike remedy. Microsoft in 2001 agreed to open up access to its APIs to allow developers to build products that worked on its Windows operating system, thereby promoting interoperability and giving competitors the opportunity to compete. In a similar way, Google has also been ordered to syndicate search results and search text ads to competitors for a five-year period. Google pushed back on that order in a blog post Tuesday, arguing that such a requirement may violate user privacy.

Both the data-sharing and syndication requirements are “in the same bucket of cracking open Google and forcing it to divulge some stuff,” Newman said, “which is kind of part and parcel with the type of remedy in Microsoft where the judge did crack open Microsoft and say you’ve got to grant access to APIs.”

The question the court tried to answer, according to Albrecht, was how to open up the market to competitors. “In the Microsoft case, they pushed for big opening up of APIs and protocols and standardizations there for middleware,” Albrecht said. “In this case, they’re going to open it up by forcing the sharing of the index data. And both of those are meant to kickstart this part of the market where competition had been suffering.”

Just as in Microsoft’s case, when rivals like Sun and Oracle pressed for harsher remedies, Google competitors have said the remedies do not go far enough. 

DuckDuckGo’s CEO Gabriel Weinberg, for example, issued a statement Tuesday saying: “We do not believe the remedies ordered by the court will force the changes necessary to adequately address Google’s illegal behavior. Google will still be allowed to continue to use its monopoly to hold back competitors, including in AI search. As a result, consumers will continue to suffer. We believe Congress should now step in to swiftly make Google do the thing it fears the most: compete on a level playing field.”

The DOJ’s top antitrust official, Assistant Attorney General Abigail Slater, said in a statement Tuesday that the organization will “consider the Department’s options and next steps regarding seeking additional relief.”

Google has indicated it will appeal the court’s decision.