What you need to know about the Google antitrust case — according to a former FTC commissioner

Eight states and the Department of Justice (DOJ) jointly sued the search engine giant over the monopoly they say Google holds on the digital advertising market. The case calls for Google to divest from its advertising suite, which includes publisher ad server DoubleClick.

This case in the U.S. District Court for the Eastern District of Virginia is actually the second currently running against Google that involved monopolization claims. In the fall of 2020, the DOJ filed a case claiming that Google had unfair control of search, thanks to partnerships with other big tech companies like Apple.

William Kovacic is a professor at George Washinton University’s School of Law and a former Federal Trade Commissioner (FTC) who actually reviewed and voted in favor of Google’s acquisition of DoubleClick. He told Technical.ly that in retrospect, he doesn’t think the FTC fully understood what was taking place — and that the acquisition ultimately bore a competitive significance he didn’t totally appreciate at the time.

Now, as the tech industry continues to grow, he thinks the DOJ is seeing Google in a new light and taking a closer look at other jurisdictions that brought monopoly cases against Google.

“The government has been refining its theory and its story about Google,” Kovacic said. “Going back to the case that was brought in 2020, they’re certainly learning something about preparing for that case.”

Informing this theory are the multiple cases filed by the European Union, which has several complaints against the tech giant; for one, Google was fined $4.12 billion, on top of other suits that add up to about the same. Kovacic said that the latest complaint from the DOJ is more nuanced and sophisticated, which he attributes to a deeper understanding of how the sector operates.

The US legal system, according to Kovacic, does note that monopolistic behaviors that may hurt competition can occasionally have important benefits for users. So a key point, in this case, will be Google’s argument that its tech is used for good, helping match users and consumers with those selling the products they might like.

Google declined to offer specific comment on the case, instead directing Technical.ly to the company’s blog posts on the proceedings. A statement from Google on the ad case confirms this, saying that the DOJ “is attempting to rewrite history at the expense of publishers, advertisers and internet users.” According to Google, the acquisitions of DoubleClick and AdMeld, which it reiterated were reviewed by regulators, allowed the company to make heavy investments in advertising tech, increasing competition in the sector.

“We are one of hundreds of companies that enable the placement of ads across the Internet,” the post reads. “And it’s been well reported that competition is increasing as more and more companies enter and invest in building their advertising businesses.”

Google’s statement also said that users are not forced to use its advertising tech; instead, they choose to do so because they’re effective. It additionally mentioned that publishers and advertisers often work with multiple technologies at the same time to reach more consumers.

In this case, the doors are open for structural changes within the advertising and tech industries. All in all, Kovacic said this case will be a chance for the government to bring everything it’s learned together in a single complaint, which shows its capability to regulate Big Tech issues — but it won’t be easy.

William Kovacic in 2015. (Photo by Flickr user GovernmentZA, used via a Creative Commons license)

“A weakness of the antitrust enforcement in the US and abroad is that it moves slowly, and it puts a real premium on the ability of the government to do an accurate diagnosis of what’s taking place,” Kovacic said. “In a highly complex, technologically dynamic sector, that can be hard to do.”

As to how the case will play out, Kovacic observed that the odds in these cases don’t typically favor the government. Still, he said that the DOJ and states’ win wouldn’t be out of the question and, if it happens, wouldn’t be seen as a surprise. Moreover, having a case at all is important: The government plaintiffs’ potential loss could fuel arguments for a new set of policy rules for monopolies is needed. Kovacic said that the very fact that a case is pending can make companies more cautious.

Still, at the current moment, it’s hard to guess how the proceedings will go. The trial for the case from 2020 isn’t set to begin until September, so it will take years before the cases are resolved. Meanwhile, the tech industry is continuing to grow and change, adding new capabilities with AI for advertising that didn’t exist before. Kovacic pointed out that this pace challenges the government’s capacity for regulation through such cases as the current ones pending against Google.

“They’re a major test of the government’s ability to use traditional antitrust litigation to achieve effective remedies,” Kovacic said. “Antitrust is being asked to intervene in a highly dynamic setting — winning the case and getting an effective remedy would show that the government is up to the challenge.”