is a senior policy reporter at The Verge, covering the intersection of Silicon Valley and Capitol Hill. She spent 5 years covering tech policy at CNBC, writing about antitrust, privacy, and content moderation reform.
On day three of the two-week remedies trial in the Justice Department’s ad tech case against Google, Judge Leonie Brinkema boiled down the argument to one key issue: trust. Brinkema interrupted testimony from a DOJ expert with a hypothetical: should she issue a strict order modifying Google’s behavior, could it resolve the issues at hand if “you had confidence that Google would actually act in complete good faith?”
The question felt particularly pointed, given how the Google trial Brinkema presided over last year unfolded. Over three weeks, the DOJ repeatedly presented examples of Google employees allegedly using chat messages to avoid leaving a paper trail for discovery. Brinkema later said the practice represented “systemic disregard of the evidentiary rules.” While she opted not to sanction Google for its lax approach to preserving evidence, she warned not to take its decision as condoning the behavior.
Soon, Brinkema will decide how hard to crack down on the monopoly that she ruled Google holds in ad tech. That decision may hinge on whether she thinks it will follow the rules this time.
Google’s remedies proposal involves a court order banning specific business practices and requiring it to engage in the ad auction process in ways similar to its rivals. But the DOJ says that leaves it easily capable of monopolizing the market again. The government wants to take power out of Google’s hands altogether by making it spin off ad exchange AdX and open source part of (and possibly even sell) its DFP tool for web publishers.
It’s the second time in just a few months that a judge has faced the question of breaking up Google. In a separate case over Google’s search monopoly, Judge Amit Mehta declined to do so, opting for lower-lift remedies like banning anticompetitive practices and sharing data. The facts that led Mehta to decide against a break up have no bearing on this case, the government argued in its opening statement. Still, Brinkema’s ruling could be an indicator of how widely judges share Mehta’s caution, as more cases against Big Tech companies roll toward a trial.
“The devil is in the details”
The DOJ was still in the midst of its case-in-chief on Friday, but Google’s attorneys were already driving at their core argument: that the government is underselling how difficult and risky its asks are. Google advertising executive Tim Craycroft testified that the DOJ’s proposals were “naive” and “incoherent.” This line of thinking seemed to land with the judge by mid-week. “The devil is in the details,” she said during the testimony of Jonathan Weissman, the DOJ’s expert witness on the technical feasibility of a break up. After he compared changing Google’s ad tech tools to changing tires on a car, Brinkema noted that a change to snow tires could result in a “bumpier” ride for the user.
But during Craycroft’s testimony, Brinkema appeared to entertain an even more extreme option the government hadn’t asked for: shutting down AdX altogether. This was apparently something Google itself considered within the past few years in an analysis it called “Project Monday,” Craycroft said.
“Why is that not a very simple and elegant solution?” Brinkema asked, after Craycroft noted that another Big Tech company could buy AdX and create its own monopoly. Though several ad exchanges exist today, the court found they’ve been denied a level playing field because of tactics like reserving full real-time bidding access to Google’s huge advertiser base through its own tools. Publishers testified in the liability trial that made it nearly impossible to leave, even though AdX was charging a supracompetitive take rate of 20 percent on transactions. Craycroft told the judge that deprecating AdX could be an elegant solution, but that would also get rid of other helpful features in the product.
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