The antitrust case against Google continues, but in the meantime, the judge in this historic case has “saved” Chrome, which will not have to be sold off. What is up for sale, however, is user data – by Andrea Monti – Initially published in Italian by La Repubblica – Italian Tech
Last year, the District Court of the District of Columbia ruled in favour of the claims made by the Department of Justice and 38 other states, which alleged that Google had violated antitrust laws in generic search services and generic text advertising.
Specifically, the Court found that exclusive distribution agreements with browsers, device manufacturers and operators, through which Google ensured that its search engine was the default, were contrary to the Sherman Act (the US competition law). This, the Court continued, prevented competitors from accessing user searches and related (meta)data. Hence the decision to prohibit the conclusion or continuation of agreements providing for the exclusive use of the search functions of Chrome, Google Assistant and Gemini, the newly launched AI platform. However, the request to compulsorily divest Chrome (in which OpenAI and Perplexity, i.e. Jeff Bezos, had expressed interest) and Android was rejected.
Why Chrome (and Android) were “saved”
It has been no secret since the days of Internet Explorer that not all browsers are created equal. Therefore, the usability of a website — but even more so the service provided through the website — can be affected by the choice of which browser to support. This is so true that even today, this is still the case, and the differences in usability can be quite significant.
Developers may decide to create infrastructure that is only compatible with the most popular browsers, or a Big Tech company may unilaterally cease support for a particular technology, as happened in 2020 with Apple’s discontinuation of Flash support. It is clear that the larger the browser’s market share, the more such choices can have a generalised and large-scale effect, so the dominant position of one browser over others is certainly relevant in terms of antitrust. However, according to the judge, this is not the issue at stake.
As we wrote on these pages, in fact, and as the Court noted, the point is not so much the software (whose source code, moreover, is freely reusable, so much so that it has given rise to several de-Googled but perfectly functioning browsers), but rather access to user data and data generated by users through the use of search services. Therefore, forcing Google to give up Chrome would have caused unreasonable damage to the company, given that other remedies — namely, those that “open up” access to user data — already satisfy the need to rebalance competition.
What Google will have to do based on this decision
While saving Chrome is certainly a notable achievement, the other requirements imposed by the judge are certainly not insignificant. If the decision is upheld in the various levels of jurisdiction, Google will have to share access to data with its competitors and will not be able to enter into exclusive contracts for search and AI features in ways that “cut out” other operators in the sector.
A sensible approach
Regardless of the merits and final outcome of this dispute, it is worth highlighting an interesting element of this decision that puts it — not only literally — a world away from the ideological extremism that sometimes characterises European Union rulings.
Instead of giving in to the temptation to adopt the draconian measures (albeit legitimately) requested by the counterparties, the judge exercised considerable caution in deciding what to do. On the one hand, he targeted contractual exclusivity and the advantages derived from the large numbers generated by Google’s conduct, which was deemed anti-competitive. On the other hand, however, he did not go so far as to adopt measures that would have irrationally led to the restructuring of Google or the redesign of its products and services.
Not that it is impossible — just remember the break-up of Standard Oil — but this was not the case and therefore such a drastic measure was not taken.
Confirmed lack of user protection
The legal case is still far from over. Google can, in fact, appeal this decision and take it all the way to the Supreme Court, so it will be some time before the final word is written. However, one thing is certain: what can be considered the most important antitrust action against Big Tech since the one brought against Microsoft in 2001 considers user data to be a product to be shared or a hunting ground to be accessed exclusively or in a limited manner without the “prey” having a say.
Strictly speaking, the issue is outside the scope of antitrust and therefore should not be dealt with here, but the issue of personal data cannot be overlooked. It is therefore possible that the European national protection authorities, if they have the strength to do so, may step in and have their say on the decisions of the US court.
That is, unless the US administration decides to react to what could be considered “interference” in the autonomy of judges and the freedom of (US) companies.