Google Search: Possible Antitrust and Competition Law Violations
On September 9, Ken Paxton, the Attorney General for Texas, and Karl Racine, the Attorney General for the District of Columbia, along with attorneys general from 48 other states and territories announced an investigation into Google over possible violations of antitrust laws.[footnote]Steve Lohr, Google Antitrust Investigation Outlined by State Attorneys General, N.Y. Times (Sept. 9, 2019), https://www.nytimes.com/2019/09/09/technology/google-antitrust-investigation.html [https://perma.cc/WV2H-HRQP][/footnote] Attorney General Paxton said, “The probe’s initial focus is online advertising,”[footnote]Tony Romm, 50 U.S. States and Territories announce broad antitrust investigation of Google, Washington Post (Sept. 9, 2019), https://www.washingtonpost.com/technology/2019/09/09/states-us-territories-announce-broad-antitrust-investigation-google [https://perma.cc/727Y-ZG35][/footnote]because Google “dominates all aspects of advertising on the Internet and searching on the Internet.”[footnote] Id.[/footnote]
Google is said to capture 75% of all spending on U.S. search ads and is expected to make nearly $50 billion in U.S. digital ad revenue this year alone.[footnote]Id.[/footnote] Other attorneys general also raised concerns and complaints about the way Google processes and ranks search results, specifically concerned that it may not fully protect users’ personal data.[footnote]Id.[/footnote] Ashley Moody, the Florida Attorney General said that “this investigation will initially focus on capture of that information and whether Google embedded itself on every level of the online market [for] ad sales to monopolize this industry.”[footnote]Id.[/footnote] As the probe was only announced recently, the attorneys general were not prepared to discuss what kind of remedy they would pursue if it was ultimately found that Google violated competition laws.[footnote]Harper Neidig, 50 Attorneys General launch antitrust investigation into Google, The Hill (Sept. 9, 2019), https://thehill.com/policy/technology/460550-states-launch-antitrust-investigation-into-google. [https://perma.cc/922T-C442][/footnote]
This new state-level investigation is not the only scrutiny Google is facing, as the Department of Justice also announced an antitrust investigation into the company.[footnote]Lauren Feiner, Google faces a new antitrust probe by 50 attorneys general, CNBC (Sept. 9 2019), https://www.cnbc.com/2019/09/09/texas-attorney-general-leads-google-antitrust-probe.html. [https://perma.cc/BC78-FHGF][/footnote] And internationally, the company has been fined three times in recent years by the European Union for violating its competition laws[footnote]See supra note 7.[/footnote], so this is not new territory for the internet giant. But this time, the consequences may be more dire than a few fines from the EU. This investigation is a threat to Google’s business model because if there is evidence of anticompetitive behavior, “the company could be compelled to make its algorithms friendlier to rivals even if that eats at its own profits.”[footnote]See supra note 8.[/footnote]
Google may be in deeper trouble with this state-level investigation than the one at the federal level, as this group made it clear Monday that they are planning to be more aggressive than the FTC or DOJ.[footnote]See supra note 7.[/footnote] And in the past, “when state attorneys general have banded together on a broad, bipartisan basis, they’ve managed to muscle major changes to other industries.”[footnote]Makena Kelly, Google under antitrust investigation by 50 attorneys general, The Verge (Sept. 9, 2019), https://www.theverge.com/2019/9/9/20857440/google-antitrust-investigation-attorneys-general-advertising-search [https://perma.cc/H5LU-F35Y][/footnote] Specifically, they “have found they can actually rewrite the rules for entire sectors and individual companies through these cases,” there is a large opportunity here to achieve regulation through litigation.[footnote]Alison Durkee, Nearly every state is now investigating Google for antitrust violations, Vanity Fair (Sept. 9, 2019), https://www.vanityfair.com/news/2019/09/google-antitrust-investigation-state-attorneys-general. [https://perma.cc/9F2Q-DJ5K][/footnote]. The bipartisan nature of the investigation is also worth noting, as it shows the seriousness of the group to get real results.[footnote]Id.[/footnote] It remains to be seen what will ultimately come of this investigation, but in combination with other investigations at the federal level, things are not looking great for the internet giant. In the end, this is one step of many in the fight to protect consumer privacy.