On today's podcast episode, we discuss the significance of Google's antitrust trial, the Department of Justice's (DOJ's) case against Google, Google's defense, and what the possible—and likely—outcomes might be. Tune in to the discussion with our analyst Evelyn Mitchell-Wolf.
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And the DOJ argues that the behavior of deleting chat histories, especially when it's convenient for the purposes of the antitrust trial, that that indicates Google employees knew they were violating antitrust law. And whatever the outcome of the case in the court of public opinion, it doesn't look good. If everything's above board and Google has nothing to hide, why is it hiding things?
Hey gang, it's Monday, October 2nd. Evelyn, and listeners, welcome to the Behind the Numbers Daily, an eMarketer podcast made possible by Intuit MailChimp. I'm Marcus. Today I'm joined by one of our senior analysts covering everything digital advertising and media based in Virginia. It's Evelyn Mitchell-Wolf.
Hello there. Today's... Why are you laughing already? What's wrong?
This is just who I am. You know this by now.
Oh, fair enough. Fair enough. How fast do we read on screens versus paper? Evelyn, what do you think you read faster on?
Yeah, well, apparently that's true. It's kind of true. So according to Scientific American, before 1992, most studies concluded that people read slower, less accurately and less comprehensively on screens than on paper. But studies published since the early '90s have produced more inconsistent results, slightly more confirmed we read slower on screens, but almost as many found few significant differences in reading speed or comprehension between paper and screens.
I think that makes sense because the longer we've had screens, the more we've been able to adjust our techniques and our interpretation of things to fit the different environments.
Yeah, that's a good point. I would've just assumed that reading on screens are slower because of the potential for distraction. So like reading on a screen, notifications popups, access to other windows.
Access to other apps ads, yeah. Whereas with the book, it's just the words in front of you. And there was something I remember from Dr. Rob Shmerling. So he wrote in the Harvard Health blog about a 2017 study published by researchers in the Journal of Association of Consumer Research suggesting that having a smartphone nearby can be distracting even when it's not in use.
Yeah, that doesn't surprise me. I try and hide my phone from myself sometimes when I'm working on a deadline and I really just can't afford to be distracted. Or I'll give it to my husband and say, "Hide this from me." I have to go get it from him at the end of the day.
You're chasing him around the garden. "Give it back. I'm done now." Well, yeah, we read from our phone screens over time, but according to PURE Research 2021, 30% of Americans read an ebook, that's compared to 65% of folks who still read a print one. Well, today's real topic is how the Google monopoly trial could reshape the internet.
In today's episode, in The Lead, we'll cover how the Google monopoly trial might change the internet. I know in other news today, way too much to discuss here, and so let's get to it. Evelyn, let's set the stage.
In the first monopoly trial of the modern internet era, the US Justice Department, the DOJ, lays out its case that it has been compiling over the last three years saying that Google illegally abused its power over online search through throttle competition. The 10-week trial which started September 12th targets Google's core search business that has turned it into a colossus valued at nearly $2 trillion. At the heart of the case, the DOJ alleges that Google illegally entrenched itself and killed the competition by paying Apple and others to make its internet search engine the default on iPhone and other devices and platforms.
Google argues that it deals with Apple and others were not exclusive and folks could change their default settings on their devices to choose alternative search engines. As Sarah Morrison of Vox distills, all of this boils down to a simple question, "Which search engine do you use and why?" We should note this case is separate to Google's other lawsuits centered around its ad tech and another one around Google blocking competition in its Google Play App store. So set those ones aside. But Evelyn, turning back to the case at hand, the case about Google Search. Initial reactions so far?
My initial reaction to what's gone down in the trial so far, for the most part it's as I expected, the DOJ has a really strong case here. What I'm surprised by is how often Google has come off looking suspect. There have been several Google executives who, when put on the stand, contradict themselves. Some of them are very pedantic and avoid answering questions altogether. When the DOJ posted some court exhibits to its website, Google complained and the documents were temporarily taken down, although they have since been restored. There's also evidence that suggests Google employees have been intentionally and meticulously deleting chat histories where relevant conversations may have taken place. And it's obviously hard to prove the contents of deleted material, but the DOJ argues-
It's [inaudible 00:05:17] yet.
Yeah, no, it's not.
"Let me see those messages on your phone."
[NEW_PARAGRAPH]"No, I just deleted them."
[NEW_PARAGRAPH]"Why did you delete them?"
"Because I'm trying to clear some space in my Google Cloud storage."
And that is the investment it takes to keep a cloud infrastructure such that you can indefinitely have all of your chat history saved there is not insignificant. However, if anyone can afford it, Google can. And the DOJ argues that the behavior of deleting chat histories, especially when it's convenient for the purposes of the antitrust trial, that that indicates Google employees knew they were violating antitrust law. And whatever the outcome of the case in the court of public opinion, it doesn't look good. If everything's above board and Google has nothing to hide, why is it hiding things?
And I'm not sure how many consumers are actually paying attention. And even if they are and they get to the point where they want to sever ties with Google, the DOJ would argue that it's not exactly easy to disentangle oneself from Google search.
Yeah, they're all great points. What jumped out to me is how big of a case this is and it's kind of a landmark case for a number of folks. It's a landmark case for the Department of Justice because the last time the US Justice Department took on a case this large related to monopolistic practices was when it went after Microsoft in '98 for antitrust violations.
The DOJ and Google have produced over 5 million pages of documents for this case just to try to help folks understand the size of this. Scott Rosenberg and Ashley Gold of Axios noting the histrionics of these monopoly trials, noting about every 20 to 25 years we have one. The DOJ's antitrust enforcers taking on a dominant tech company, IBM, '69 to '82, Microsoft, '98 to 2002, and now Google.
More interestingly, they were saying each of these trials has taken place as one era of computing was transitioning to another. So from the mainframe to the PC for IBM, from the isolated PC to the web for Microsoft and the advent of AI now looming over Google's case. I thought was quite interesting. So it's landmark case with DOJ, landmark case for Google Search ads, which are at stake, nearly 60% of Google's revenue in 2022 raking in about $160 billion. So landmark case for them. And then a landmark case for antitrust law. And we'll get into this a bit more when we talk about the potential outcomes, but Laura Phillips Sawyer, who teaches antitrust law at the University of Georgia School of Law, noting that this is a pivotal case in a moment to create precedents for these new platforms that have real market power. It could set the tone for other folks, big tech players that is.
So that's initial reactions. We're going to now lay out the case for the DOJ, the prosecution, and then for Google, the defense. We are trying to figure out the best way to do this, whether to go point by point, for against, for against. We thought that might be a bit confusing. So what we're going to do instead is we're going to lay out here are the DOJ's pillars as Evelyn put it, here are the pillars to their arguments. And then we're going to say, "Okay, here are all of Google's counterpoints." Kind of similar to opening statements, if you will, but much more in depth, longer versions of those. And then at the end we'll talk about some of the potential outcomes. Evelyn, the DOJ's case against Google, you said there are four pillars. Let's take the first.
All right. Actually, I think it's important here to talk about a couple of legal kind of concepts that might not be common knowledge. So it's worth clarifying, legally speaking, a monopoly can be any market condition where a single company or entity creates an unreasonable restraint of competition. And that's according to the Legal Information Institute at Cornell. So in the case of advertising, while there are many buyers and a fair few sellers in the search market, one seller has enough market share to dictate prices. And it seems pretty clear at that this point, Google Search does indeed fit that legal definition of a monopoly. But in the US, monopolies themselves aren't inherently illegal. Monopolization is illegal. So it's the anti-competitive activity and behavior that's really at the center of this case and all antitrust cases in the US.
Let's talk about the first pillar of the DOJ's argument. So the first pillar is that defaults influence consumer behavior. The consensus from behavioral economists is that defaults are extremely powerful. Google only needed to learn that lesson once when Apple switched its default map app from Google Maps to Apple Maps in 2012. In the two years after Google Maps lost default status, usage on iOS dropped more than 60%. Even Apple admitted that Apple Maps was an inferior product. So that in itself demonstrates that defaults are powerful. And Google has struck agreements such that Google Search is the default search engine on iOS and Android mobile devices and almost all major browsers, Chrome, Firefox, Safari. Microsoft Edge of course uses Bing, but in terms of market share, Google's got a lock on most search touchpoints. And then DuckDuckGo CEO Gabriel Weinberg testified that default status is the best method of distribution for a browser or a search engine. Google is paying billions annually more than any of its competitors could afford for that default status. And in the case of Apple, that has meant Apple hasn't needed to develop its own competing search engine.
It's not a good look, is it?
It's really not.
Legally paying to be the default, not a good look. Gregory Rosston, Stanford's Public Policy Program Director, is saying, "Generally, antitrust laws take a dim view of agreements between competitors to divide up or not enter the market." So even though these payments are legal, it doesn't look good.
It surely doesn't.
Yeah. So yeah, Google making itself the default search platform on mobile devices. Sarah Morrison of Vox was saying that using a competitor requires knowing that it's even possible to do so in the first place, as well as how to make the switch. She was saying many studies explain how difficult it is to overcome consumer inertia. Most people go with what's there, and Google's been paying to be there. Microsoft defense was that people could install alternative browsers if they so choose. But that didn't work back in '98 and the DOJ doesn't think it's going to work now. So pillar one is Google making itself the default. Pillar two?
Pillar two, network effects make Google's product stronger.
Okay, talk to me.
Google accounts for somewhere around 90% of search queries made by consumers in the US and globally. So those queries generate a lot of data. And there's kind of a cycle here. The more data, the better the search results. And then better search results lead to greater adoption, which leads to more queries, more data, and the cycle continues.
The DOJ argues that Google's default status locks competitors out from achieving the scale necessary to collect anywhere near the same amount of user data, meaning the disparity of resources is so great that competition on the merits of the product is impossible.
So even though you said being a monopoly isn't the issue here, monopolistic behavior is, optics matter, right?
Oh, they do.
Google is quite literally a monopoly. 90% of search engine market for Google in the US, 91% globally according to Similarweb. Bing has a few percent. Yahoo even less. But that's pretty damning monopoly evidence right there. If we were playing a game of Monopoly and you had all of the light blues or the pinks or the oranges or the reds or the yellows or the greens, all the dark blues with hotels and everything and 15 grand in hand and I had the two browns and a couple houses and 50 bucks, it would be hard to argue you haven't already won. And if you were like, "Let's keep playing, you never know," I'd be like, "We're done here" and walk away. I might flip the board. Yeah, optics matter here.
They do. And the question is for whom do optics matter, because I think it matters a lot to advertisers and a lot to regulators. But to the consumers, Google is where it is because there are a lot of reasons that consumers may not know that they can switch defaults. Switching defaults is a lot harder than Google makes it out to be in many cases. So I don't want to say all consumers should be paying attention and trying to act on their own. Like if they find Google creepy, that they should go find somewhere else to take their business. I mean that points to the very argument the DOJ has that consumers don't really have very many other places to go that would provide the same kind of experience. Because if you want to replace Google with Bing across all of your devices and all of your touchpoints-
... collectively, it's going to take a lot of effort and a lot of time. So even though optics on Google don't matter to consumers as much because it's like what are they going to do, it's not a great look like you mentioned.
Yeah, so pillar one, defaults. Pillar two, the network effect. Pillar three?
Pillar three. So it's kind of the culmination of the first two pillars. Google has perpetuated its dominance in search by paying a lot of money to be the default search engine pretty much anywhere a consumer could potentially interface with the internet and in doing so prevented any competitor from gaining a foothold and becoming a real threat. It's pretty straightforward. It's basically just that Google didn't just stumble into a monopoly. It's strong arming the rest of the ecosystem to make conditions very unfavorable for new entrants. And here we are in the reality where that is absolutely the case.
Okay, so pillar three, maintaining default status. Pillar four?
Pillar four, Google is using its dominance to inflate ads. This is far from surprising for any advertiser. If we subtract search ad spending on retail media from the equation, Google accounts for roughly 70% of the search advertising market. Search tactics revolve around Google. Of course they do. Google processes 90% of search queries. Google is where the eyeballs are. So can Google jack up ad prices by 5 to 10% without losing clients to a competitor? Yes, it can. Google ad executive Jerry Dischler admitted as much. And Adweek reported that in advertisers' experience, 5 to 10% is actually an understatement for how the variance in ad prices that are seen. And raising prices isn't necessarily the problem. The problem is that Google can raise ad prices substantially without any corresponding increase in ad quality or performance and advertisers will pony up because what are they going to do? Just reroute their entire search budget to Bing where the audiences aren't?
So the monopoly on search lets Google hike prices. DOJ thinks the dominance has let Google charge advertisers more than it would in a competitive market. I mean, now it's got a 52% slice of the US search ad revenue market according to us. Amazon's in an extremely distant second with 22%. Microsoft and Apple each have around 5. So that's another good point.
Okay, so we've got four pillars, which are the DOJ's case against Google; defaults matter, network effect, maintain default status, and price hikes, being able to hike prices on advertisers. All right, so that lays out the DOJ's argument against Google. Let's pivot to Google's defense against the DOJ. All right, Evelyn, what's Google's defense case?
Google's main defense is simply that it's search product is superior. It also claims that it's very easy to switch to another search engine if someone would like to. As we discussed earlier, that's not really reality for most people. So it's easy to poke holes in both of those counter arguments. To the idea that Google search is superior, the obvious question is, why would Google pay so much money for default status if consumers would pick its product regardless?
I mean it's such a big and valid question that the way that the law works, the burden of proof is on the DOJ that Google is indeed a monopoly and that it got there through anti-competitive action. But that one question, why would Google pay so much money for default status if consumers would pick its product regardless really is going to be a hard mountain for Google to climb.
So yeah, people are using us because the best search engine, but then you say, "Well, if you're the best, why do you need to pay to be the default?" When Apple first installed Google as the default search engine in 2002, it didn't pay to be the default. By 2005, it started getting worried that its lead was diminishing. Google proposed to pay Apple, and that's where we are at the minute. Google likely to counter. So despite Windows PCs being the number one used desktop and having Bing preset as a default search engine, most Windows folks still up to use Google, showing Google, in theory, is the better search platform. If you don't like it, switch, right? People can switch. Google says consumers can change their default search engine in five or fewer steps on their devices. When users open a Safari browser on their iPhone, they see quick links to a variety of other services besides Google. Microsoft's Bing, Wikipedia. So that's going to be their argument.
Also, they could point to some research from TD Cowen saying that people have tried other platforms. In March of this year, 87% of American adults said that they had used Google in the past 30 days, but 22% of people said they used Yahoo in the past 30 days, 16% had tried Bing, 9% DuckDuckGo and not ever recently. So that might be part of their argument. People are using other platforms, they're just coming back to us the best.
Yeah, it's really hard without thorough research that we haven't seen in trial yet. Maybe Google will present some research on this front, but it's really hard without that research, the qualitative research that asks consumers why they're using those platforms to know whether it is because Google is simply superior or because it's hard to get around Google or-
Yeah, exactly. And you mentioned before that the big question here is why people are using certain search engines over others.
And I think while Google can say some people are using other search engines, the vast majority of people are using Google because that's what's built into their devices and their browsers.
A few other points for Google. So Google's payments to be the default are legal. Google has lawfully paid billions of dollars to device makers like Apple and Samsung and phone carriers like Verizon for it to be the default search engine. The exact amounts for those default search agreements were redacted from a trial, but estimates land somewhere between 10 to $20 billion a year to Apple alone. So those payments are legal. They might argue that. Google could also argue talking about being a monopoly, they have lots of competitors. In theory, there are lots of places consumers can find products or information online. Amazon is one, they're gaining digital ad revenue share somewhat at Google's expense. So maybe they point to Amazon. A lot of people starting their product searches there. TikTok stealing younger Gen Z searches. And then OpenAI's ChatGPT, which just added a voice component. So maybe they point to these folks and say, "Look, we might have 90% of the search market, but things are changing. There are other competitors out there, even if they're not 'traditional' search engine competitors."
Of course Google's partnership with TikTok might also throw a wrench in that argument that they recently partnered to-
It might not help.
Yeah, display kind of "Research this topic on Google" interruption to a TikTok feed.
Yep. Final thing here I've got is its search engine is free, and that's what we've seen has been a problem when we talked about something like Facebook being anti-competitive. How can you be anti-competitive when you're free? David McCabe and Cecilia Kang of the New York Times pointing out that for decades, judges have generally ruled against companies in antitrust cases only when their conduct hurts consumers, particularly if they've raised prices. So some argue that that lets companies like Google, which provides internet search for free, off the hook. But you were saying before, advertisers have seen prices go up as a result, so that's maybe where you get them.
Yeah. That's why the fourth pillar is important, is because antitrust law in the US does have that consumer price tenant and there is no consumer price here. Although I'm hoping that this case might also influence the way that antitrust law is codified in the US because there is a cost to Google search and it's the cost of data. The user is paying for Google search not with money, but with their privacy, with their data. So perhaps that needs to be accounted for. You mentioned this is kind of like a new era. We're about to transition into a new tech era where data is a currency. I mean, data has always been a currency at least since Google started its ascent. So that should be taken into account in how antitrust law is also configured in the US and everywhere.
Well, let's talk a bit about how antitrust law could be configured some of the possible outcomes here. So we just laid out Google's defense. Search engine is free. Google has lots of competitors. With the best search engine, people can switch if they want. "Our payments to be default are legal." So that's kind of their case. Let's talk about what the most likely outcomes might be because the government's laid out in its complaint that it wants to try to get to a few of them. How many possible outcomes do you see here?
Well, there are kind of endless outcomes. There are kind of different permutations of the several ways that this could go. But the big kind of overarching ones that seem to be most discussed, if not most likely, first biggie, although I think this is the least likely one, is that Google could be broken up. It could be forced to divest its search unit, which is of course the very core of its business. Like you mentioned, search ad revenues accounted for almost 60% of Alphabet's total revenues. I think you mentioned 2022, and that's the case for its most recent earnings report in Q3 2023 as well. So Google Search is Alphabet's cash cow, and that's a big deal.
Yep. New York Times is noting the monopoly trials can change the direction of industries. It points to 1984 under pressure from the DOJ. AT&T split itself into several regional telecom companies, and that breakup transformed the telecommunications industry by making it more competitive at the dawn of the mobile phone era. To your point though, legal experts saying they don't think a breakup is the most likely. Google Search business is not easy to cut it up into pieces.
Exactly. And another outcome is that Google could be forced to share its user data with other search engines to kind of close that resource gap that I mentioned before. And that is definitely a possibility. I don't know that it would really change much about Google's market position, but it's on the table.
Yep. Okay, so restructure itself, share data. What else?
The last one I have, because again, there are a lot of different ways this would go, and I'm sure maybe you have some more, but the most likely outcome to my mind is that Google is prohibited from renewing or making any new default deals. Although those payments are legal, like you mentioned, the effects of them are anti-competitive, which then brings them into a legal gray area. So I think that is a very real possibility. We don't know if consumers are given the choice, whether they will continue to choose Google or whether they will explore other default options, but that outcome could potentially unravel Google's dominance for the very reasons we outlined in the kind of DOJ's four pillars.
Yep. The default payments could stop folks like Apple, Mozilla. I'm sure they're not going to be too happy about that because they make a lot of money from those payments, but that could definitely happen. Yeah, and just changes to their monopolistic business practices in general, whether that's default payments having to stop. Or letting folks choose. So what would that do if they had to let folks choose when they opened up their new phone and they were deciding which browser to have as opposed to there being a default one?
The Economist was noting in early 2020, Europeans won the right to pick their default search engine when they set up new devices powered by Google's Android mobile OS. Since then, Google's share of the European search market has edged down from 94% to 90. Assuming Americans behave similarly, the article says, and given that 8 percentage points of global market share in search equals about $2 billion in annual ad sales, a few billion dollars could be shaved off Google's top line over several years. So using that as a case study, maybe the behavior doesn't change too much, but it could be something that happens regardless.
Well, and that's something that we talked about too when Bing brought its chatbot, its generative AI kind of product to market, was even if it could just grab 1% of market share from Google, in terms of dollars, that would be a big deal for Microsoft. And I don't think that's materialized yet. It might not ever. But when we're talking about percentage points in this market, these are billions of dollars.
Mm-hmm. Yep. So we've got restructuring itself, sharing data, monopolistic business practices changing, default payment stopping, letting folks choose, potentially paying damages, what the fines could possibly look like. One just being a major distraction at a really bad time. And so, one of the pieces I was reading was noting IBM and Microsoft both lost momentum in their markets during their antitrust trials. They both ultimately won their cases, but it made them hesitate on business decisions as they were under increased scrutiny. And so Ms. Morrison at the Vox was noting, "While Microsoft was tied up in court, paying billions in fines, afraid to make any major moves that could incur more government wrath and no longer allowed to gatekeep the internet through its browser, rather ironically, new companies like Google emerged." So it is a distraction certainly.
It's also a kind of public airing of their dirty laundry, so to speak, because Daniel Constantinovich, who is one of our briefings analysts, noting that Google has lost some goodwill with advertisers in recent months after a series of scandals involving low quality video ad placements and ad trackers on children's content. Advertisers watching the trial are taking note of the fact that whilst on the stand, you mentioned Jerry Dischler, Google Ad exec, saying the company sometimes raises prices on its auctions by 5 to 10% without notifying advertisers. Does that turn some advertisers off? Potentially.
And then maybe do we get a new law as well? Rebecca Allensworth, a professor at Vanderbilt University's Law School thinks that ultimately the Google trial will test whether antitrust laws written in 1890, that's right, not 1980, 1890 to break up sugar, steel, and railroad monopolies can still work in today's economy. So maybe some new laws.
Yeah, I think that's a big one too. I mean, like I mentioned, I personally believe that they should at least account for what's going on with people's data. It's a big area of concern. We have privacy legislation springing up all over the United States and can be considered federally as well. So this is one area where there could also be maybe not so huge of an adjustment in antitrust law, just considering another form of currency that might have implications for privacy as well.
Yeah. Well, that is it for The Lead. Thanks for sticking with us. We had a lot to cover there. It's time for post game report.
[NEW_PARAGRAPH]Evelyn, what's most worth repeating from the show?
I can just say that right now, it's not looking great for Google, at least to my mind. And part of that is because we're still in the part of the trial where the DOJ is making its case against Google. We've heard from the DOJ's witnesses. We've gotten glimpses of Google's defense and opening statements and cross-examination of the DOJ's witnesses and in testimony from Google executives. I think the most interesting insight comes from the disparity between what Google says and what it does. We all know actions speak louder than words, so we should all be watching what Google does.
Yeah, we're in the midst of a trial. The trial will be completed sometime towards the end of this year, but a judge's ruling won't come out until next year. One important point though from Scott Rosenberg and Ashley Gold of Axios is saying in 2000, when Microsoft was going through its antitrust trial, they face defeat at trial and the judge ordered the firm be split in two. But a year later, the company largely reversed that loss on appeal. So even after the ruling of this case, sometime next year, appeals, we could be many years out from actually getting some kind of a final decision.
Yeah. Oh, it'll definitely take a long time. It might take even longer than usual because there's the looming prospect of a government shutdown. If that does materialize, the fate of this case, whether it continues under essential workers kind of provisions, is undetermined as of yet. So at least as of this recording, who knows how long the timeline will be?
That's what we've got time for this episode, Evelyn. Thank you so much for hanging out with us for slightly longer than usual, for trying to distill what the hell is going on in this Google antitrust case.
Thanks for having me, Marcus.
Thank you so much to Todd who's editing this episode whilst Victoria's out. Thanks to James who copy edits the show, and Stuart who runs the team and produces when V is on vacation. Thanks to everyone for listening in. We'll see you tomorrow hopefully for the Behind the Numbers Daily, an eMarketer podcast, a shorter one made possible by Intuit MailChimp.
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