Google monopoly ruling shows 19th-century law can police Big Tech

The first big tech-sector anti-monopoly ruling in a generation challenges the idea that the internet era has outgrown U.S. antitrust law.

SAN FRANCISCO — A federal judge’s ruling that Google broke the law to maintain a monopoly in search has dealt a blow to one of Big Tech’s main arguments against regulation: that America’s antiquated antitrust laws aren’t flexible enough to address the fast-changing nature of tech innovation.

On Monday, Judge Amit Mehta of the U.S. District Court for the District of Columbia wrote in a 277-page decision that Google had broken Section 2 of the Sherman Act, a law signed into effect by President Benjamin Harrison in 1890.

The ruling was the first major antitrust ruling against a Big Tech company since a federal court ruled against Microsoft in 2000 for maintaining a monopoly through its operating system. Since then, Google and a small handful of other firms have become titans of the internet age, pulling in revenue never before seen in the history of business and touching the lives of billions of people every day. For most of the past 20 years, the U.S. government has encouraged their growth, rarely intervening in acquisitions or launching antitrust lawsuits against them.

That has changed in recent years, as politicians, regulators, smaller competitors and consumers have become more critical of Big Tech’s power. This court case is the first in a series that have been launched against Google, Meta, Amazon and Apple, all of which have pushed back. In its defense in this case, Google argued that the rapid evolution of the internet, including the rise of TikTok and the artificial intelligence boom, meant that the company did not have a monopoly. Even Google competitors and critics who welcomed the government’s lawsuit worried that Washington didn’t have the tools to constrain tech giants.

“The one lesson I take from this is that antitrust law has a lot of flexibility in it. It seems able to accommodate dealing with these large companies,” said Neil Chilson, who previously served as the Federal Trade Commission’s chief technologist and is now head of AI policy at the Abundance Institute, a tech think tank.

For decades, most judges and antitrust experts subscribed to a view of competition law that focused on whether company behavior increased prices for end consumers. Big Tech products like Facebook’s social network, or Google’s Gmail or search engine, didn’t come under scrutiny because they were free for regular people to use. But as the companies acquired competitors, grew rapidly richer and became gatekeepers to the internet, some scholars argued that the consumer price-focused approach to antitrust needed to be revolutionized.

Politicians also began souring on Big Tech as concerns grew in the late 2010s about social media’s impact on polarization and children’s mental health. While lawmakers were previously loath to be seen as anti-tech or anti-innovation, Silicon Valley has more recently become a popular political punching bag for people from both parties.

The investigations into Big Tech began under the Trump administration, as tech CEOs were repeatedly hauled in front of Congress to answer questions on misinformation, competition and alleged bias. Trump’s Justice Department sued Google in October 2020, and the department continued the lawsuit after Biden took power, culminating in last fall’s trial and Monday’s ruling against the company.

Many Big Tech critics were thrilled about Mehta’s decision, suggesting it bodes well for prosecutors in pending Big Tech antitrust cases and bolsters the argument that internet giants are using their dominance to stifle competition in emerging technologies. Nidhi Hegde, interim executive director of the American Economic Liberties Project, a think tank that has advocated for more aggressive antitrust enforcement, called it “a resounding signal that the anti-monopoly movement is here to stay.”

The Justice Department’s antitrust lawsuit against Apple bears some similarities to the Google search case, alleging that the tech giant uses its prominence in smartphones to control app developers. But as with the Google case, much will depend on how the court defines the relevant market — as the tighter iPhone ecosystem or the broader smartphone market in which Apple is one of multiple rivals. Apple has said it would “vigorously defend” itself in the case and has sought to have it dismissed.

The Federal Trade Commission has also filed antitrust lawsuits against Amazon and Meta. The agency is challenging the online retailer over the fees it charges merchants on its marketplace, while it argues in the Meta case that Facebook has quashed competition, especially by buying rivals Instagram and WhatsApp. Both companies have promised spirited defenses and say they aren’t monopolies. (Amazon founder Jeff Bezos owns The Washington Post.)

“This decision generates momentum for those other cases in the coming months,” said Notre Dame Law School Professor Roger Alford, who is consulting for state attorneys general in a second anti-monopoly case against Google, involving its role in the digital advertising market.

But other antitrust experts say Mehta’s decision itself won’t likely have such influence. “Antitrust cases are so case-by-case,” said Sam Weinstein, a professor at Cardozo School of Law and a former Justice Department antitrust lawyer. “What happens in a Google case will have very little bearing on what happens with a Facebook case or an Amazon case.”

Google has already said it would appeal Monday’s ruling to the U.S. Court of Appeals. A ruling from that court could have a more widespread effect on how judges around the country think about antitrust and Big Tech, Weinstein said. “That’s going to be a very important decision.” If Google loses there it could try to get the matter before the Supreme Court.

However Google fares in any appellate court, the judgment will be grounded, like Mehta’s, in the body of antitrust law that has grown up over more than 130 years. U.S. lawmakers have periodically proposed updating legislation to specifically address new internet technologies. Such efforts have never drawn enough backing to pass into law.

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