The DoJ’s antitrust battle with Google underlines Big Tech’s preference for secrecy, a growing bugbear for advertisers

By Ronan Shields • October 2, 2023 •

Ivy Liu

The Justice Department’s attempts to prove its allegation that Google’s $163 billion search empire constitutes an illegal monopoly is now in its fourth week.

Of course, Google maintains that its dealings with fellow titans of the internet economy, such as Apple, Samsung and Verizon comply with the requirements of The Sherman Act, and that its dominance is more an exemplar of its market benefit.

However, one significant feature of the weeks-long legal tussle has been Google’s efforts, as well as its Big Tech cohorts, to keep much of the evidence introduced to the proceedings from the official record with numerous closed sessions and redactions of contractual arrangements.

At the core of the legal duel is the DoJ’s allegation that Google’s efforts to become the default search engine through deals with media companies, telcos and device manufacturers — such as paying Apple billions per year to be the de facto search engine on the iPhone — violate U.S. competition laws. Naturally, Google denies such claims, arguing the provision of default services in the digital economy is a long-standing practice, plus competitors are “just a few clicks away.”

Keeping abreast of developments in the 10-weeklong civic bench trial — with presiding Judge Amit P. Mehta solely responsible for evaluating evidence, applying the law, and making a verdict — can be difficult.

For example, there is no public access to the events via live-streaming et cetera. Meanwhile, much of the early evidence exhibited at trial was later absent from the DoJ’s case webpage owing to several motions from the defense, Google has its own official webpage highlighting its defense arguments. At time of writing, both parties had agreed to an interim measure permitting the defense to use a limited window to review the evidence the DoJ wants to post online with any disagreements to be promptly resolved in the following day’s court session.

Trial observers note how proceedings demonstrate Big Tech’s preference for not laying all of its cards on the table. Authors at the Big Tech On Trial blog observed that “secrecy is systematic” and noted how this trial’s proceeding are reminiscent of Microsoft’s tactics in its antitrust travails at the turn of the century.

Arguably, the highlight of the third week of legal proceedings was Apple’s svp of services Eddie Cue appearing on the witness stand in open court to discuss the iPhone-maker’s hotly contested $10 billion-per-year deal with Google for the latter to serve as the flagship device’s default search engine.

A key part of Cue’s testimony was the nitty-gritty of Apple and Google’s revenue-share negotiations plus the issue over whether this arrangement was the main reason for the iPhone-maker not launching its own search engine. See below for the social media commentary from courtroom attendees representing Big Tech on Trial.

Apple executive Eddy Cue faced about an hour of direct-examination in open court from the DOJ this morning. Now they are back in closed session — I would guess for most of the rest of the day — but here are some highlights from Cue’s testimony:

Cue confirmed he was the lead
— Big Tech on Trial (@BigTechOnTrial) September 26, 2023

Testimonies heard later in the week detailed the efforts that Microsoft was prepared to make to become the default search engine on Apple’s flagship devices. Plus, they serve as a prelude to the expected testimony of Microsoft CEO Satya Nadella next week, albeit, this appearance is also expected to be (somewhat at least) away from public view.

Regardless of the outcome of the trial, the early proceedings of the case have provided evidence of the culture of secrecy, a.k.a ‘black box’ proposition, of Big Tech’s media services.

The questionable transparency of such offerings was unearthed at length prior to the Sept. 12 commencement of the ongoing trial in studies published between June and August by Adalytics Research, many of which prompted discomfort, if not uproar, among media buyers.

True, executives from such platforms can point to the imperative of user-privacy when justifying such limitations on third parties’ access to data, but as evidence already exhibited in the trial demonstrates the motivations of such execs are not always as virtuous, especially whenever they have to hit their numbers.

From here, the question has to be asked: do media buyers have good reason to believe that Apple or Microsoft’s terms would be any different to those already on offer by Google?

The trial continues.

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