Around six years ago, a new rallying cry rippled through Washington: “Break Up Big Tech.”
It was a slogan emblazoned on campaign posters, uttered at congressional hearings, and beginning, it seemed, to echo through the halls of the nation’s antitrust enforcers. Momentum in the legislatures eventually petered out, but the enforcers at the Justice Department and Federal Trade Commission remained more active than ever. President Joe Biden never took the kind of hard posture on Big Tech that political rivals like Sens. Elizabeth Warren (D-MA) or Bernie Sanders (I-VT) adopted, but nevertheless, when he became president in 2021, he tapped Lina Khan — who’d first made a name for herself as a law student laying out an antitrust case against Amazon in The Yale Law Journal — to head up the Federal Trade Commission. A slew of legal complaints against Google, Meta, Amazon, and Apple, threatening to dissolve their alleged monopolies (some first brought under Donald Trump’s administration), began to pile up.
In the last year, the US government seemed to be on something of a winning streak, clinching victories in not one, but two of its landmark antitrust cases against Google. On Tuesday, however, the Justice Department finally hit a stumbling block. Judge Amit Mehta, who a year ago forcefully proclaimed Google to be an illegal monopolist, granted only a handful of the government’s requested remedies beyond what Google itself had conceded. He rejected the DOJ’s most aggressive proposals, like forcing Google to sell its Chrome browser, and significantly narrowed others, like around the amount of data Google would have to share with rivals to help them compete.
Of the numerous tech antitrust cases that the government brought in the past few years, this is the first case to receive a ruling on remedies. It’s possible that judges in other cases will choose a harsher approach. The DOJ and Google will meet in a Virginia courtroom later this month to argue the appropriate remedies to restore competition to the ad tech market a judge found that Google also monopolizes. A breakup is still on the table there.
To prevent a breakup, a tech titan only needs the system to flinch once
Nevertheless, Mehta’s cautious approach to resolving Google’s search monopoly is good news not just for Google but for all the tech giants, and an indication of just how difficult breaking them up will be. Enforcers across administrations overcame years of stagnation to bring cases against four of the largest tech companies. Mehta’s own 2024 ruling against Google, declaring it had an illegal monopoly in search, was a historic one. But in the end, it seems, substantial change to restore competition will not be forthcoming. To prevent a breakup, a tech titan only needs the system to flinch once.
That obstacle is further complicated by the fast-moving nature of the tech industry — something that many foresaw as a likely issue, but which became a highly visible complication with the explosion in generative AI tech. Mehta pointed to the rise of the AI industry to justify backing away from some remedies he might have given more consideration to before the new technology shook it up. While acknowledging that allowing Google to keep paying for default distribution spots for its search engine “could blunt the effectiveness of the remedies imposed,” he reasoned that “allowing Google to continue making payments is more palatable now than when the liability phase concluded.” That’s largely due to the fact that well-funded generative AI startups are finally showing signs that they might disrupt the market for internet search, a field that tech insiders had previously described as the “biggest no-fly zone” in venture funding.
Mehta left the door open to revisiting some of his remedies should his measured approach fail to restore competition in online search. He said he’s “prepared to revisit a payment ban (or a lesser remedy) if competition is not substantially restored through the remedies the court does impose,” for example.
“Imposing liability in name only is pure judicial cowardice”
This is a far cry from “break ’em up,” and the politicians and advocacy groups who pushed for tech antitrust in the last decade are now slamming Mehta’s latest ruling as feckless. Open Markets Institute executive director Barry Lynn said Mehta’s ruling “lets Google and every other monopolist know that even the most egregious violation of law will be met with a slap on the wrist.” American Economic Liberties Project (AELP) executive director Nidhi Hegde said in a statement, “Imposing liability in name only is pure judicial cowardice. This ruling leaves the public unprotected, crucial and evolving markets concentrated, and worse, sends a signal that will embolden monopolists everywhere.” Lawmakers including Warren, who chanted “break ’em up” during her 2020 presidential bid, called on the DOJ to appeal.
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