The Justice Department recently filed a lawsuit against Google, accusing the company of illegally maintaining monopolies over search and search advertising. This week’s episode details the ins and outs of the lawsuit, the allegations the government makes against Google, and what all this might mean for similar companies like Apple and the future of Big Tech. To figure out how we got here, we also look to the history of antitrust, including what happened when a similar lawsuit was brought against Microsoft. Leading experts on technology, antitrust, and the Constitution Tim Wu of Columbia Law School and Adam White of George Mason’s Antonin Scalia Law School join host Jeffrey Rosen.
FULL PODCAST
PARTICIPANTS
Tim Wu is the Julius Silver Professor of Law, Science and Technology at Columbia Law School. He is a contributing opinion writer for The New York Times and the author of multiple books, including: The Curse of Bigness: Antitrust in the New Gilded Age (2018).
Adam J. White is an assistant professor of law at George Mason University’s Antonin Scalia Law School where he directs the C. Boyden Gray Center for the Study of the Administrative State, and a resident scholar at the American Enterprise Institute.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- The Curse of Bigness: Antitrust in the New Gilded Age (2018) by Tim Wu
- "Google, You Can't Buy Your Way Out of This" from The New York Times by Tim Wu
- "Google.gov" from The New Atlantis by Adam J. White
- "Big Tech, Big Government: The Challenges of Regulating Internet Platforms">Big Tech, Big Government: The Challenges of Regulating Internet Platforms" essay series from National Affairs, edited by Adam J. White
- The Collected Supreme Court Opinions of Louis D. Brandeis
This episode was engineered by David Stotz and Greg Scheckler and produced by Jackie McDermott. Research was provided by Alexandra “Mac” Taylor and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] Hi, We The People friends. Every week, I ask you to rate, review, and subscribe to the show. Here's why that's important. Positive ratings help new listeners find us and decide to tune in, and then we can spread constitutional light and inspire others to educate themselves about the Constitution. So, if you're enjoying the show, please search for We The People on Apple Podcasts on your iPhone or iPad or Mac or wherever you're listening, scroll down and click Write a Review and leave a message to let us know that you're enjoying We The People. We would really appreciate it. Thanks so much and onto the show.
I'm Jeffrey Rosen, president and CEO of the National Constitution Center and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.
The Justice Department recently filed a lawsuit against Google, accusing the company of unlawfully maintaining monopolies over search and search advertising. To discuss what the lawsuit might mean for the future of big-tech and to understand its legal stakes, I'm joined by two of America's leading experts on tech antitrust and the Constitution. Tim Wu is the Julius Silver professor of law, science and technology at Columbia Law School. He is a contributing opinion writer for the New York Times where his recent piece is Google, You Can't Buy Your Way Out of This. He's the author of many books, including The Curse of Bigness: Antitrust in the New Gilded Age. Tim, thank you so much for joining.
Tim Wu: [00:01:45] Sure, a pleasure.
Jeffrey Rosen: [00:01:46] And Adam White is an assistant professor of law at George Mason University's Antonin Scalia Law School, where he directs the C. Boyden Gray Center for the Study of the Administrative State. He's also a research fellow at Stanford University's Hoover Institution. Adam is currently editing a series of essays for National Affairs. It's called Big Tech, Big Government: The Challenges of Regulating Internet Platforms. Adam, it is wonderful to have you back on the show.
Adam White: [00:02:11] It's great to be here, Jeff. Thank you.
Jeffrey Rosen: [00:02:14] Let's begin with the facts, as Professor Kingsfield says. The Justice Department has alleged that, "Google has entered into a series of exclusionary agreements that collectively lock up the primary avenues through which users access search engines and thus the internet." I'm reading from the complaint, and that's essentially a claim that Google is dominant in search.
And second, the Justice Department alleged that, this dominance hobbles competition in the search markets, and the, the language in the complaint is these anti-competitive practices harm competition and consumers, reducing the ability of innovative new companies to develop, compete and discipline Google's behavior. So, let's take each of those claims in turn. Tim, can you explain more fully what the Justice Department is alleging when it says that Google is unlawfully dominant in search?
Tim Wu: [00:03:11] Well, what they're alleging, to be a little more specific, is that they have illegally maintained their monopoly. and, it is, not illegal in the United States to, to have a monopoly, but it is illegal to, to, to maintain it using anti-competitive tools like an exclusive contract. And I-I think the basic, ideas, number one, that Google is a monopoly, something they would contest, and second of all, that these deals and I think the easiest to understand is the deal with Apple.
you know, they did this deal with Apple and they paid Apple a lot of money, billions of dollars, in order to meet, stay the sort of default exclusive search engine, for Apple on, on the iPhone, which was an, a very important market. there's a hint of a sense that maybe they were paying Apple to stay out of search themselves. You know, seeing that way, this is almost like a collusion between Apple and Google, to, give Google the search markets and Apple can stay to what Apple does best. So that, that's basically the core of what the government is alleging.
Jeffrey Rosen: [00:04:24] Adam, what would you add to Tim's description of what the government is alleging about Google's unlawful monopoly and search?
Adam White: [00:04:33] Well, I-I agree with what Tim just said. As I understand it, there, the allegations regarding Google and, and Android, as opposed to Apple, is that Google has, has executed, exclusivity agreements that require the, the installation of Google software and bundles of Google software on Android devices as well.
Tim's the, Tim is much more expert on these things than I am and so I'll, maybe I'll leave it at that except to add that I think the response of Google, both before and now after the lawsuit, so often is these, the, the consumer choice is just one click away and that whatever Google does, you know, paying millions of dollars in these agreements to, to sort of position itself best in this market, the consumer himself or herself can just un-uninstall software, change a default search engine in a iPhone, browser and so on. And, and, and with that, the consumer can still choose.
But I think that, that, that I'm skeptical of that because, as [laughing] somebody who uses an iPhone, knows, and that it's, it's sometimes not so easy to change these things. You have to learn how to change your apps. You have to invest the time and effort in, in customizing your phone. And I think that Google recognizes and they're paying money on the basis of their recommendation, the rec-recognition, that to be the, the default option on these things is worth an immense amount of money since most users just stick with their defaults.
Jeffrey Rosen: [00:05:57] Tim, well, since Adam has introduced Google's defense that had, the choice is just one click away and he's expressed skepticism about that defense, tell us what you think, both of the defense and of the substantive charge that Google is unlawfully, inhibiting competition.
Tim Wu: [00:06:13] Well, let, let me explore another, I think challenge, for the government, one that Google will forward. And, and these aren't my views. I'm, I'm just sort of giving, what I-I believe will be Google's most, important defenses. Google will also contest the idea that it's a monopoly and, you know, the definition of monopoly we know means a singer, single seller. And, Google will say, "Well, you know, you can't really think of general search as, a-a-a market, you know, because you don't buy things in it. It's just kind of out there. It's not really a market."
And then if you're, saying, "Okay, well, what we dominate or have a monopoly in is, is advertising. Well, you know, actually we compete with all kinds of companies, for marketing, for advertising, digital advertising, you know, Facebook, Amazon, very dangerous competitors."
So, I think one of Google's strategies, will be to suggest, not if they are small fry, but at least that they, they, they don't actually have a monopoly power here and there, there's something to it. I think one of the great go- challenges for the government in this case, what I see as the key challenge is there is a sense that Google didn't quite coerce anyone into adopting the Google search engine.
you know, it's not like Samsung was dying to use Bing, and then, well, you know, if they're gonna give us billions of dollars, well, we'll go with Google." I-I think that the, again, I think the Google side on this, the strongest, arguments are all about, like, this doesn't look like a normal sort of monopoly, forcing people to do stuff kind of case and, that, like Microsoft. We could talk about Microsoft in a second, but yeah, no, so you've got me arguing defense and it looks like Adam's on the, the prosecution side here.
Adam White: [00:08:01] [laughs]
Jeffrey Rosen: [00:08:02] [laughs] Wow. Well,
Tim Wu: [00:08:03] Yeah.
Jeffrey Rosen: [00:08:03] ... my, my, my head is spinning, but I want to make sure that both arguments are put on the table. So Adam, one more BTU on this first allegation, that Google has unlawfully maintained monopolies in search and search advertising. You, you express skepticism about the choice is one click away. What, what do you think of the ar-argument that Google is not actually a monopoly?
Adam White: [00:08:23] Yeah. And, and I should say [laughs] up front, just so I don't confuse listeners. I have mixed thoughts about Google and about, the lawsuit itself, and so I want to try to do justice to both sides. I-in, in, in Google's defense, it's not clear that consumers have been harmed. We, we all as a public flocked to Google in the early 2000s because it was an astonishingly effective search engine at a time when search engines were so, crucial to our, our use of the, of the very quickly expanding internet.
and so it's not clear that we've suffered from using sort of second rate products from Google. at the same time and now mo-, I'd say now there is something to be said for Google's argument, if it makes it that, that the market is not, it can't just be sort of general search. We now get our information from the internet through a variety of channels. we can search on Twitter. We can search on Facebook, we get news feeds, we have all these different sources of information where it, i-in some ways we're less reliant on the one size of the, the all purpose search engine.
But I think really the key, the key flaw in the lawsuit, or the thing I have the most doubts about, is the real consumer harm. As, as you know, as conflicted as I am on some of these issues, I am still at root, I think a believer in the, the, the current mainstream of anti-trust economics. I-I recently helped Joshua Wright, former FTC commissioner, with a paper he published for National Affairs calling yo- to, to maintain the current doctrine on antitrust.
And one thing that worries me about this lawsuit and worries me about so many of the debates surrounding antitrust is that there seems to be broad efforts on both the right and the left to change antitrust law, or to go beyond it, to cure the ills that it sees companies like Google, bring to society. And I, anyways, I think of it, this lawsuit as an example of that, and it's why, as much as I have some skepticism about Google in general, there's some current concerns about Google, I still remain skeptical about the lawsuit itself.
Jeffrey Rosen: [00:10:26] Thank you for that nuanced answer. Tim, Adam has put on the table the second part of the lawsuit, namely that, Google's anti-competitive practices harm consumers, and, they reduce the ability of new companies to develop, compete, and discipline Google's behavior. Tell us more about the kind of consumer harm that the government is alleging and what you think of that allegation.
Tim Wu: [00:10:49] Well, I'm not going to, and I think that's-
Jeffrey Rosen: [00:10:51] [laughs]
Tim Wu: [00:10:51] ... actually our all important, bridge to anti-trust history, because, I, am not of the opinion that this case should turn on whether in fact you can prove that, consumers, you know, are a dollar out-of-pocket a year somehow because, Apple, or because Google pays so much money to Apple or it's reflected in higher advertising rates.
so, I think that the consumer welfare centric approach to antitrust, which is a modern innovation, dating roughly from the 1980s, at least in the courts, has gone too far. I think, the Google case i-, shows us why. if you accept, as, as fact, and I'm gonna say that we don't know this, but, if you accepted fact as fact that, that Google and, Apple made a deal and in exchange for, let's say, $10 billion a year, given to, to Apple in good old hard cash, which is even for these companies, not a trivial amount of money, that in exchange Apple agreed not to enter the search engine market itself, which, you know, it probably could have done, you know, I think that is an attack on the competitive system, on the competitive process. I think it's, bad for the country, but it doesn't mean, that I can prove to you to, you know, beyond a reasonable doubt that I can show, you know, a dollar harm amount from that, in litigation.
And, to me, this shows why antitrust has, has, gone wrong, by being too influenced by the, the economics of the, of the 1960s and 70s of a-a famous, figure some may know, Robert Bork, of the Chicago school of Antitrust. And, yeah, I mean the more, I don't want to flatter ourselves, but a more Columbia school approach or maybe a return to pre, Chicago approach would say, you know, showing a harm to competition is, is what antitrust, should be about, not these very detailed price, theory centric methods.
Jeffrey Rosen: [00:13:00] Adam, Tim has just, given us a sense of the argument that he made in the New York Times recently, namely that antitrust went wrong in the 1970s and 80s and 90s when influenced by Robert Bork's, pathbreaking book, The Antitrust Paradox. Courts began emphasizing consumer harm above all. I-I guess I'd ask you to respond to his argument and do you agree that courts went wrong or should consumer harm be the focus? And if it is the focus, is there adequate consumer harm alleged here?
Adam White: [00:13:31] Well, let me start with the ending. on Google, I think, my reading of the complaint is that the, the government basically takes a self-evident the, the, the, the, the consumer harm that flows from these exclusionary agreements. and there's something to be said for that. If, if Google couldn't obtain its objectives through the market, then it would enter into these agreements and why would it enter into these agreements but for the fact that it can't just win on the market?
I-I'm not sure about that. Again, Google has had such an incredibly successful, tool now going for, for two decades, such an effective tool that it's not clear to me that Apple ever would have entered search, or that would have built a-a better search engine. I just don't know if there's a showing of that, or if there's a showing that Apple really did leave the, the market intentionally behind because of these deals. That would, I think that would raise, you know, more alarming antitrust questions, but we're not there yet.
And in terms of where we are in modern antitrust law, I'm not, again, not nearly the antitrust scholar that, that, that, that, that Tim is, or that, that Josh Wright and others are. I'm fundamentally comfortable with modern administrative law because I'm fundamentally un-uncomfortable with sort of open-ended government regulatory power. And one of the virtues, I think, of the modern Chicago school of antitrust was that it used the consumer welfare approach to put a limiting principle, put some structure into the otherwise open-ended provisions of the Sherman Act and other anti-trust laws. There just isn't a whole lot there, there in the substance of so many of the, of the statutes.
And I see in many ways the Chicago school of antitrust as being the other side of the coin of the other legal movement of that time, the textualism and originalism movement that tried to find some framework that would em- that would limit discretion of judges, both for the sake of, of enforcement and lawsuits now, but also to point back to Congress and say, "If you don't like these standards, legislate them anew," and until Congress returns to the drawing board on antitrust law, I, I think that, that the consumer welfare standard has been, you know, the, the best limiting principle on antitrust discretion that we've seen.
Jeffrey Rosen: [00:15:42] So, we have three schools on the table. I think we better desegregate them. Tim, th-the Harvard school of antitrust in the 60s and 70s, presume the illegality of mergers, regardless of whether the conduct had the ability to benefit consumers by lowering prices. The Chicago school comes in, in the late 1970s and, focuses on the effect of conduct on consumers before finding it illegal. And then you mentioned the Columbia school. So tell us what the Columbia school is, and you're certainly at the center of it. And then give us a sense of whether this lawsuit is likely to prevail in the courts under the existing law, which seems more favorable to the Chicago school, or whether you'd have to change the law into a more Columbia-like approach in order for the government to prevail.
Tim Wu: [00:16:29] Yeah. So, le-let me, if you don't mind starting the law before, before the theory. So, you know, I'm, certainly not opposed to rigor and I think, there, there was, in fact, some helpful, correctives that were accomplished by the intellectual movement of the Chicago school. the problem is anything, can be taken too far.
Textualism also, as, and originalism, even more particularly, even if intended as a form of restraint, can, almost, turn around and, become less of a strain, but their own, source of, activism, or almost like a club. You know, it begins life as a cage and turns into a club. That, that's probably pretty bad metaphor. Cardozo had a better one where he said that metaphors, begin life designed to, liberate thought and end up enslaving it.
but, I think it's gone too far and I don't wanna make Adam defend something he may not believe in, but there are those and Google maybe, lawyers maybe in this crowd, defending their case, will say, you know, "It's not enough, to show harm to competition. We are going to put in litigation a burden of proof for you to show a sort of monetary concrete harm from Google locking up, its competitors. and if you can't sort of show that in this very concrete form, then you get, you got to go home," and that's kind of an extreme version.
I don't know, you know, for Robert Bork would believe in that, but it's, something to say where Chicago has, has gone, which is a, in legal terms, a excessive burden. And what happens is you start to push at the limits of economics. you know, there's a lot of harms that exist that are, difficult to price out in, and even in competition you would think, "Well, it doesn't seem obvious that lack of competition is, costly."
Well, it turns out to, to be, you have to sort of prove the negative. What would the other world look like where we'd had competition? Well, probably have lower prices. But, you know, you can get an economist to try and say that, but, it creates a-a very big burden for the plaintiff.
Columbia school, so wh- you know, the, the Columbia school, draws a lot of its inspiration, from Louis Brandeis, and I think is a return to a conception of antitrust, which is as interested in power as it is in prices. it is, concerned with putting some limits on, on private concentrated power with a sense that there's a, almost a constitutional aspect to this.
Now, you know, the cases may still be expressed in similar ways, still use the antitrust laws, but I think in the background is this idea that the antitrust law was passed, as, as part of a sort of democratic constitutionalism. And that that's very important to keep in mind, when, when we take on these big cases against some of the most powerful, companies in the country, not to mention the world.
Jeffrey Rosen: [00:19:16] Well, since we're squarely in the middle of, Brandeis and, The Curse of Bigness, which was the title of Brandeis' famous book and, and your great one as well, I must ask Adam what you think of Brandeis' claim, which is now being so eloquently championed by Tim Wu in the Columbia school, that the purpose of antitrust law, like the purpose of the Constitution is not efficiency, but liberty and the focus of regulators, should not be, consumer welfare, but, power.
Adam White: [00:19:50] Well, Jeff, I-I know, I know not only of Tim's appreciation of Brandeis, but yours as well. And so, I tread very lightly before criticizing Brandeis. In fact, I think Brandeis is the right figure to look back to at this moment, and I'll even go one further and say that the moment we have right now, the, the practical role of these tech companies in our daily lives is, it's more than just approaching the sort of, the gilded age that, that Brandeis came, came of age with.
I mean, back then, we were talking about oil trusts and, and, and the, and all these other trusts, manufacturing and agriculture and everything. In some, and, and transportation, in some ways the tech companies, are a strange amalgamation of all of those things, right? You think about all the different things that a small handful of companies do in our lives. And so I-I-I think that Brandeis is the right person to look to, and I take his thoughts seriously on these things.
The, I think I'm skeptical of major reforms in federal antitrust law though for my own, Brandeisian perspective. Please don't throw me out of the room with this one, but w-w-wh- the thread of Brandeis' thought that I'm most attracted to is his skepticism of, of bigness and power in the federal government. the Brandeis who joined the unanimous Supreme court, striking down unanimously core parts of the, the first New Deal, including in the Schechter poultry case, then, you know, re-resurrecting the non-delegation doctrine.
I am, as I said before, I am wary of these large tech companies. I think they need a lot more scrutiny and they might need real reform through the law. I'm just wary of using the hammer of federal antitrust enforcement as a first tool in this. I'm especially wary of the Justice Department doing it on what might be the eve of the end of this administration, bringing this lawsuit, possibly for political reasons. all of this leaves me very wary of the lawsuit, but for reasons that I don't think Brandeis would totally disregard and might have, at least in some small respects, some sympathy for.
Jeffrey Rosen: [00:21:56] I can't, resist quoting, Brandeis in the Myers case, the doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power." Tim, can you, tease out how Brandeis limited his concern about arbitrary power at, in the federal government with arbitrary power in the corporate sector?
Tim Wu: [00:22:19] Yeah. no, thanks a lot. And, you know, some danger of this moving to the, from the [laughs] Google hour to the Brandeis hour, but, I, want to say that, fortunately or unfortunately, Adam and I agree on some of this. I am also, not someone who supported the first New Deal. I thought it was a horrendous, effort at, central planning, that, it was dangerous in a very dangerous time. And frankly, we might be very lucky that it failed, given what happened in countries where, those models were more successful, particularly Italy and Germany.
So, yeah, no, I-I'm not a lover of a, highly centralized, federal government that directs economic policy, and decides who wins and who loses and so on. I think there's extreme dangers in that direction. And in some ways I think our country has been lurching a little bit in that direction, in recent times.
But, where I think we do disagree is I do think if you believe there is some need for a check on enormous concentrated, private power of the kind we're seeing right now. if you look at the revenue of, you know, Amazon and, and just the top five tech companies combined, you know, it's somewhere in the neighborhood of $6 to $7 trillion, which is more than the GDP of, of an enormous amount of the world's countries. So you, you're dealing with entities that have the, the powers of nation states. they, in some ways are, are more in your life, have, know more about you, have, almost certainly more control over what gets heard or seen, at least in a country where you have a first amendment.
So, there's an extraordinary amount of power at play here. And the question is who has the actual resources, the power to stand up to it? you know, having worked in state government, I-I-I like the States, but, you know, there's 10 people in the antitrust division of New York, which is actually one of the stronger states in this area. and, you could maybe hope that legislatures, do the job of controlling private power, but I think legislatures have a track record of, being overwhelmed. you notice they haven't passed any legislation, in Congress at least, that's even remotely, something that the, big tech companies don't want. So I think that, has a lot of problems.
So, you're sort of left with, independent law enforcement with a lot of power behind it. And that's, that's in my mind when it comes to monopoly power, we're talking about the antitrust laws. So maybe that's, where I differ is, you know, I have sort of balance of power, theory here between private and public. And, if we're at least speaking domestically, you need something with the power that can stand up to companies, that have so much in the way of resources and their own forms of power.
Jeffrey Rosen: [00:25:06] Well, Adam, the, your debate with Tim about Brandeis is fascinating, but I do want our listeners to understand whether or not this lawsuit is likely to succeed under existing precedent. assuming it goes forward, will it, is it likely to succeed and, and kind of analyze under existing doctrine, what its chances might be?
Adam White: [00:25:28] I have to admit, I'm not quite sure what's gonna happen next because it's not quite clear to me what the government is really asking for and what the lawsuit might produce. We'll see what the, what Google's response is and maybe this will get resolved quickly on a motion to dismiss because I-I-I just don't think the law clearly supports this, but even if they get past that preliminary stage and say, if, if Biden wins, say the Biden Justice Department maintains this action, the, the relief that's been requested, structural reform, is so open-ended, it's not clear even what the government itself is asking the courts to do, whether it's practically feasible, technically feasible within the limits of real judicial discretion. I don't know.
So I have very low expectations for this lawsuit. I wouldn't be surprised to see it go away shortly after a, after a-a change in administrations, if, Vice President Biden does happen to, to, to win in the election. I have very low expectations for the lawsuit.
Jeffrey Rosen: [00:26:25] Tim, what are your expectations for the lawsuit? How might it fair at each phase? What is the relevance of the Microsoft case in telling us what might happen and what are the possible remedies that courts might order?
Tim Wu: [00:26:38] Yeah, so, I think the case is, strong and, one reason I say that is that, I think that, or [laughs] I know that the Justice Department has pretty much copied their, Microsoft complaint and of course they won the Microsoft case, and the-they're relying on all the same theories of Microsoft. So they, they clearly have, the, the precedent. it is sort of the strongest precedent o-on their side. you know, they're not, it shows that Silicon Valley is not the only place that knows how to clone a successful product. And th-there's no question in my mind that they would make it past a motion to dismiss, a-and even past summary judgment.
So, you know, if they, they keep going with this, it's kind of a simple theory. That's why, you know, no one doubts that the contracts exist. the hardest question, as I sort of alluded to before, is whether, there is indeed monopoly power or in, you know, some version of, did they really hurt anybody with this, which is what Adam brought up earlier.
but there's a couple other kind of side things that a-are really important that I want to bring in, to fully understand this. First of all, the states are widely expected to file their own complaint or complaints. there might be two different groups of states that file their complaints, or they may file it all together, but that's gonna happen, and it further complicates, the story.
there's the possibility that ad- Apple will be added to the lawsuit. I think it's very preliminary to discuss that, but, you know, we've discussed collusion already. There is something a little bit unusual about the fact that, Apple hasn't been added. I'll note among other things that there's a lot of money on the table that Apple has.
And, finally the big question to me and, and something that seems to me to, to favor the suit is that a big question is why hasn't Google settled this? you know, if Google believes, that they really are the best and they don't need to pay this money, to, keep the default position, you know, one really big question is [laughs] why is Google paying that money? But if, if they think so, and they say, "Okay, well, knock it off, no more deals, at all." Well, why aren't they settling?
Now, one possibility is the Justice Department refused to settle or, you know, suggested something so onerous, like, "We want to split you into 40 pieces," that they, they thought that was crazy. or it could be that they really do need this deal and they need to win this lawsuit to, you know, it matters to them either to keep, Microsoft out or to keep Apple out.
So, that's one of the other elements in here and, you know, maybe it'll be wrong. Maybe, now maybe it's just that, Bill Barr wanted to file a complaint and, after he's had his fireworks, they'll quietly, settle and, and we'll never hear about it again. But, I-I don't know. I-I think this, is gonna have legs.
Jeffrey Rosen: [00:29:32] Adam, on the consumer harm point, which will be crucial for courts, I have to ask you about privacy. in another life, I spent a lot of time thinking about digital privacy and the complaint alleges that the simple collection of consumer data in order to get ad revenue is itself a consumer harm. How, how much traction might that get in the courts? And also what's your response to Tim's claim that by simply following the Microsoft playbook, the Justice Department actually has a decent chance of succeeding?
Adam White: [00:30:04] Well, I agree totally with Tim that this does feel a lot, the complainant in the end feels a lot like the Microsoft complaint, and it'll either be distinguished or not on the facts of this as, as I think Tim, Tim just said a moment ago. if we're gonna talk about privacy, if we go [laughing] on very long, we'll be back at Brandeis again, I suppose.
Jeffrey Rosen: [00:30:21] Excellent.
Adam White: [00:30:21] but I, but I'd, I'd say, I'm glad you brought up privacy. I think there's so many substantive complaints surrounding Google right now: privacy, data, content disputes, part in part the questions about whether Google shades its, search results to favor one political direction or another. There's so many substantive criticisms being levied at, at Google that I, like Tim, wonder what was stopping, what, if anything, stopped the Justice Department from settling, if that was a possibility.
And I kind of [laughs] wonder if whether the, Attorney General Barr's Justice Department and the Trump administration made onerous structural demands on these sort of second, these, these, these outside issues, regarding the content of Google's search results. I-I kind of wonder how much of that, that was there. I think that in the end, there's so much swimming around these companies, if we do see other lawsuits from, from blue state attorneys general, they have their own, they, they have no shortage of complaints about Google too, as we saw in the recent House judiciary report coming from, from Capitol Hill. And so I'm not sure what the upshot of, of it's going to be in, in this particular case.
To get back to the point of [laughing] it all, if Microsoft, if Microsoft case is the model for this, the factual differences might simply be the superiority of Google's product versus Internet Explorer. If I remember correctly, Microsoft's anti-competitive behavior, trying to lock in early Internet Explorer, which was not self-evidently the best browser, if anything, it was clearly not the best in the era of Netscape. And then Internet Explorer took off for a while and then it was overtaken by other things. Back then, Microsoft was really leveraging its monopoly power, to promote a sub-, an inferior product. and it's just not clear, I think, yet whether that's the case with Google or not.
It might be and if that's the case, then this, then this case is, then this case is very strong and, and it, Google will lose as Microsoft lost. But I just think that there's a big difference between, to me at least, a big difference between the product at issue that Google is serving up and, and the product that Microsoft was trying to foist upon every, you know, Dell co-, Dell and Gateway and IBM computer that was coming off the line.
Jeffrey Rosen: [00:32:46] Tim, what do you make of Adam's suggestion that Google might win because its product is better than Microsoft's browser? And then tell us about the range of structural reliefs that you think courts should order, such as selling off part of the company or avoiding its restrictive contracts or perhaps even regulating Google as a public utility.
Tim Wu: [00:33:10] So I'll begin by, agreeing with Adam, as I said earlier, that I think the path to victory for Google, the weakest part of the government's case lies in this, fact that it's pretty much universally felt right now that Google has the best product in town. Now there's some who might say, "Well, you know, that's circular. it's because they did all these deals, to, to get all the traffic and whoever has the traffic is gonna have the best product. So, you know, they've set this system up to make it impossible to challenge them on a, on a quality basis."
So, so I'll, leaving that to one side and I think that is one of the most important counterarguments. I, I don't know if I've made it clear o-or not. but, that is their path to victory. and I think an important missing element for the government is a sympathetic victim. you know, where is the blood on the floor? Even as, forget about consumers, even another competitor, where is this sort of worthy, alternative to, to Google that, got squashed and are you really suggesting that Microsoft, is the victim here? another multi-trillion dollar company. Now there's smaller players like DuckDuckGo, so maybe they're the, the victims. Maybe it's something that never got started because they realized there was no path forward.
But there is that sort of lack of a-a, you know, a dead body just to be [laughs] straightforward, i-in the case. And in fact, in the Microsoft case, Netscape was killed by Microsoft's, measures. but Internet Explorer I don't think rose just because it was, people liked the color blue or it had some great advantage over Netscape. there was no way to get at Netscape after a while. They, they, they locked them out and, they won. Microsoft made it all the way to 92% market share or something with Explorer. so that is the, the biggest, difference.
Now, I think the government has counters to this position. I mentioned one of them, the idea that, Google's quality is a by-product in part of its anti-competitive behavior. So by, making sure that it's the only show in town, it's the only one that has enough data, that has enough user feedback, to improve the product constantly through AB testing.
And I don't want to get too technical, but, but one of the reasons, well everyone uses Google, so, you know, this isn't necessarily technical. One of the reasons that Google is so good is they are much better than Bing or DuckDuckGo at sort of obscure searches. you know, DuckDuckGo and Bing are pretty much the same as Google when it comes to searching something like, NCC website, you'll find that, you know, Columbia University, you'll find that, Louis Brandeis' great biographies, you'll, the first hit will be Jeffrey Rosen's.
Jeffrey Rosen: [00:36:11] No [crosstalk 00:38:48].
Tim Wu: [00:36:13] ... but, [laughs] I didn't write a biography. So, and there's other good biographies. But what I'm saying is you, you, it's fine for those searches, but when you get something slightly obscure, I don't know, criticisms of the APA in the 60s or something, which no one knows what I'm talking about other than Adam. then the other search engines really started to fall down. And one of the arguments is that they just don't get enough traffic in order to populate those search as well, or to test what makes for a better search under those circumstances.
So there is a theory out there, and I assume the government will bring back this theory, to say that this kind of quality advantage is part and parcel of their monopoly maintenance and, you know, we could have a world with two competing search engines, like really competing, each at about half the, the, the search, volume, that, and, and they would both be quality and maybe be different in interesting ways.
And also maybe subject to some of these less subjects, some of these bias problems that we talk about, or at least you'd have a choice. they could kind of, keep each other straight a little bit. but the Google has eliminated that possibility. They've, they've knocked everyone down to a level where they're not really in a position to create a quality competitor. So that's sort of the government's come back.
the final question is, that you asked as well, what kind of relief would make sense? What are the remedies? at their press conference, the government, the Justice Department, by the way, represented by Jeffrey Rosen, not our host, but a-
Jeffrey Rosen: [00:37:44] [laughs]
Tim Wu: [00:37:44] ... Justice Department lawyer. they, said, I think tellingly, that nothing is off the table. And, the possibilities I would say range from the very simple, which is, "Knock it off. No more exclusive deals. You are enjoined from any such deal-making in the future," which is a relatively, mellow remedy and one I'm surprised Google hasn't already a-agreed to already, if it was offered, to the more extreme structural options. one of those which has been discussed would be the divestiture of the Chrome browser, based on the theory that part of what keeps, Google, strong is the fact that it also has a near-monopoly on browsers. And, you know, Chrome is pretty hard to get away from the search engine.
another idea that's, out there, this is more extreme, would be a divestiture of Android. So, Android would become a separate company. that would be a strong medicine, but, it would certainly change the competitive landscape. So, yeah, that's, and I think we're very obviously in very early days. and, none of us has real information on, on what the government is thinking about.
Jeffrey Rosen: [00:38:55] Adam, your thought on the remedies? Tim, identified a range of possible ones. what do you think of them? Which ones might a court order and which ones, if any, should a court order?
Adam White: [00:39:04] Well, since Tim mentioned, the Justice Department's Jeff Rosen, I just want to go out of my way to say that it's, I have the, the pleasure of being friends with both of the Jeff Rosen's. so when I sit here criticizing his lawsuit- [crosstalk 00:42:12]
Jeffrey Rosen: [00:39:15] Everyone who went to summer camp is friends with the Jeff Rosens, [laughing] so it's more.
Adam White: [00:39:19] [laughs] in terms of nothing being on the table, I wish the Justice Department would have at least put some specific things on the table to explain what some possible outcomes were. I've drafted enough complaints that I know that you, you always leave the door open to anything the court might plausibly grant. but the, but the real lack of specificity in what precisely they're asking for which, that leaves me uneasy.
I agree with, with Tim's suggestion that the, the, maybe the clearest and easiest ones, remedies would be ending these exclusionary a-agreements, these exclusive agreements, if it can be shown that they, they actually do entail competitive harm. That's pretty straightforward. "Hey, Google, knock it off, stop doing that." That's fine.
the structural remedies in terms of splitting off the Chrome browser, splitting off Android, I just don't know enough about the company's technology and operations to know how feasible that is, how deeply embedded code from one aspect of Google's operations is embedded in the others. And that if you were to split this off into two or three or more companies, whether that would mean that the sort of core technology of Google Search really would be devalued, by, by making it no longer sort of in its current state, you know, usable by, by, by the Google company.
I have to say, I-I-I agree that Google's success as a web browser really, or sorry, as [laughing] a web browser, as a search engine, really does reflect the fact that it has amassed so much information based on two decades of search. And in many ways, that's a competitive victory. Google started far outrunning the other search engines like Infoseek and Alta Vista and whatever else we were using in 1998, long before these allegations of misconduct came up. And I think that that vast storehouse of data and experience, it is clearly the moat, that keeps com-, that keeps a lot of competition at bay and Eric Schmidt in his less guarded moments is, has said as much.
and so I think the question is then, how much added protection do these other things, provide? And if the court can if, sorry, if the government can show that in this lawsuit, which I don't think they have yet, well then maybe the court can tailor its relief narrowly to that. But to end where I started, I agree the, the Justice Department's made clear that nothing is on the table, but their just total failure to really put specific things on the table in terms of what they're asking for first and foremost, in concrete terms, I-I take to be, for me, a-a-a reiteration of the weakness of the case, or, or at least the gap of the government has yet to fill.
Jeffrey Rosen: [00:42:08] Tim, any final thought on remedies? And then let's turn, as we wrap up to the future of antitrust, this lawsuit against Google has attracted a range of bipartisan support from, Senator Josh Hawley, Republican of Missouri, and Representative David Cicilline, Democrat of Rhode Island, Elizabeth Warren is, is joining. So, might a Biden administration keep up a more, Brandeisian approach to antitrust enforcement and could that even include lawsuits against Facebook?
Tim Wu: [00:42:37] so let me, first link the, question of remedies to some of the, discussion of constitutional values, which we had earlier. You know, as I said earlier, I-I think antitrust, in some ways is part of the American constitutional system, that it [fides 00:46:04] in some cases, almost a final check on, on private power. And if you believe that and you want it to play that role, you kinda have to believe or be interested in the structural remedies, because they are the ones that, diminish or limit the power, of some of these incredibly powerful private entities.
So, you know, for example, i-if Google, has a search engine, and that's their original source of power, but they sort of spread to browsers, maybe they've spread to, to mobile systems, so they have this almost, not just a kingdom, but an empire.
and if that's true of some of the other players, one of the, I guess what I think is one of the remedies and antitrust is in some ways an indirect way of getting there is to say, "Okay, you get your kingdom, but not an empire." And, because, well, we're supposedly we don't believe in monarchy here either, but we, empire is worse.
And, a-a multi, monopoly empire, kind of like IBM had, or, or AT&T most obviously, AT&T was, almost a-a part of the state. They had almost, six or seven markets which they were absolute monopolies in and couldn't be dislodged. Well, in that case, the only thing that's gonna break it up, you know, they, they are beyond the power of the market to do anything at that point, especially if they have government on their side. if the market's not gonna be any check on this power, the, the remedy is, is government and the breakup is the one that is the most straightforward reduction in power. Much more of a power difference than just saying, "Knock it off with this kind of deal."
as for the Biden administration, yes. My instinct, is that generally speaking, the Biden administration, if they are, if Biden wins, would be a, you know, would, would carry on with this, lawsuit. I think, especially at the staff level, would be very unusual to terminate the lawsuit immediately, and, almost disgraceful for, for the Justice Department to, to do things that way. maybe they'd be more inclined to settle, maybe they have different, things, but I-I can't imagine them, not taking this forward. And as we've said earlier, there's also the states, a-as another factor.
We haven't talked, I don't wanna over-complicate the discussion, but there is another [laughs] big antitrust, action that is possibly in the future and that's against Facebook. You mentioned it, and that is centered in the, in the Federal Trade Commission, a different agency. And that one, I sense that, for whatever reasons, I feel that, the Democratic Party, well, not uniformly, but overall, somehow seems even more, intensely, desirous of bringing that suit.
So, yes, I think, in a strange moment of bipartisan agreement, I don't know if there would be a huge difference. Now, maybe what their goals are, are slightly different, you know, the, the conservative bias theory isn't one that, the democratic, or the anti-conservative bias theory isn't one, I think, that Democrats, take, believe in, but, they do, sort of, I think have a strong sense that they would like to bring this case.
sorry, I-I-I'm going a little too far here, but there is, I should, I-I say all that, there is a sort of historic allegiance between the Democratic Party and roughly the left and, these big companies. I mean, if you went inside Google and swung around a cat, I don't think you'd hit a Republican. I don't know if you could, there are probably Republicans working for Google and Facebook, but almost all of them I'm sure are in the DC lobbying operation. So, there is that as well, which would kind of, suggest maybe some more sympathy. But, I-I'm not, I, I think they'll probably, continue with the lawsuits.
Jeffrey Rosen: [00:46:45] Adam, can you imagine a bipartisan consensus around more vigorous antitrust administration if Biden wins, given the coalescence of Senators Hawley and Warren? In 1912, after all, all three candidates, Taft, Wilson and Roosevelt were agreed about the need to, discipline the trust, although they disagreed about the means, are we seeing a resurrection of that consensus or not?
Adam White: [00:47:10] Well, I do think there's increasing bipartisan consensus that these companies have far too much power, in our daily lives, in different ways, and that the government ought to bring them to heel in different ways. There's some division among Democrats and division among Republicans, but certainly with Josh Hawley leading the way on the Republican side, you do see this and, and also, Jim Jordan. I saw Congressman Jordan put out a letter recently complaining about aspects of the big tech company's, operations. you do see this sort of burgeoning criticism of the tech companies from the right.
But I-I think that these, th-these different political groups are bringing fundamentally different complaints against these companies, on the, the, the, the, I'd say very, very generally speaking on the right, the complaints are going to sort of anti-conservative, anti-Republican bias in the content and, the editorial decisions of these, of these companies. on the left, I-I think it, I take it to be generally criticism that these companies aren't doing enough to, to combat the problems of misinformation and, and disinformation.
I don't think we're going to see any time soon any consensus on what ultimately people want the government, either in administration or Congress or the courts, to do to these companies. People just agree that they want something done. It's a very strange dynamic.
I'll be very interested to see especially what Google does if Vice President Biden wins the presidency. I-I agree with Tim's sense of the, the political sort of constituency within Google, but also Google had a very sort of comfortable relationship with President Obama and his administration before he even was president. And I don't mean comfortable in like, in terms of like nefarious re-revolving door or anything like that. I just mean that, that the leaders of Google were fundamentally comfortable with President Obama's view of the relationship between government and tech and, and also comfortable with, with Obama's vision of, of, of government's role in society and tech's role in society.
I wrote an essay a couple of years ago for The New Atlantis, which is a policy quarterly, and it was called Google.gov and it was a intellectual history of Google and trying to think through what it would look like if Google were to take on a more active role at the behest of Democrats to, to distinguish information from disinformation and misinformation. Now, along the way in that article, I said that I think Google probably has more to fear from Democratic regulators than Goog- than Republican regulators. That proved [laughing] obviously wrong, at least with respect to the Justice Department.
But I do think that if Vice President Biden wins, I'll be looking for signs that, that Google will sort of proactively take on a more public minded role, role in society. I, I, I would disagree with it, I think, but, but to see Google try to take the lead almost as a mirror of the sort of ESG, environmental, social, and governance movements we've seen among other companies. And, and I think that Vice President Biden winning might spur Google to, to try to reorient, both what it's doing and what it's seen as doing in a way that might take down some of the pressure on the political left. It certainly won't help on the right though.
Jeffrey Rosen: [00:50:30] Tim, responses to Adam's, thoughtful comments about, government and regulation?
Tim Wu: [00:50:35] you know, it is an interesting, question. It is interesting to think about what the left and right, what the Democratic Party and Republican Party really want, here and why they're critical of big tech. I think there's some people in the Democratic Party that they're not very vocal, who think, "Wait a second, aren't these our companies? you know, they're from California, they believe in like paternity leave and maternity leave, they give away free food. you know, they're sort of like our kind of people and why are we turning on them and attacking them when maybe, they can spread sort of California vibes across the whole universe?"
I think there's a, an unspoken [laughs], resistance and, and, and, and that may ha-have more of a factor than, than anyone wants to talk about because, you know, those, it's hard to sort of say that publicly.
my own position is informed and I think both the, Adam and I's dis-discomfort in Republican and principle democratic discomfort does come down to this idea of too much power. you know, whether that is power over speech or, power over, the, the, or, or failure to exercise power over disinformation or whatever it is. I-I think that's at the core of this, and I think that's why it's within this country's sort of noble, origins to, resist unaccountable, concentrated power. So that, that's where I'd leave it and that's why I see this as a, as overall a good development.
Jeffrey Rosen: [00:52:11] Adam, that leaves the last word to you. In 1912, there was a division between, Roosevelt who wanted to use the regulatory agencies to curb the power of standard oil and William Howard Taft who wanted a more traditional, enforcement approach in the courts. Might we see a similar split among conservatives, libertarians and Republicans about antitrust today?
Adam White: [00:52:37] I think so. Where you stand depends on where you sit, I suppose, and we'll see how the election shakes out and which levers of power are actually within the grasp of Republicans and which are within the grasp of Democrats [laughs]. And I don't want to sound cynical, but my guess is that people's attention will gravitate towards the tools they have at hand. Jeff, you keep pointing us back to that moment in the early 20th century and, if I could just say, at that moment, at a time of radical change in the way we live, the way, the way the economy worked and so on, our nation had huge debates about this and in the end, the progressives who won, they argued from first principles, they made a case and they wrote laws and built institutions to combat the evils they saw.
I-I disagree. I-I, not disagree I-I-I'm, I'm not a big fan of a lot of the laws they passed. I'm not a big fan of some of the institutions they built, but one thing that I hope our present moment imitates with that is to try to build things anew to respond to these problems and not just keep reaching to old tools because they're the best we have. And I hope that all the debates coming out of Congress, out of the agencies and so on, I hope they'll produce new institutions and laws suited for our own moment. that would be a-a good thing.
Jeffrey Rosen: [00:53:52] Thank you so much, Tim Wu and Adam White, for a nuanced, multifaceted, and multi-partisan discussion of Google and the future of antitrust. We The People friends, your homework is to read Adam White's article, Google.gov, Tim Wu's great book, The Curse of Bigness and of course the immortal works of Louis Brandeis. Adam, Tim, thank you so much for joining.
Adam White: [00:54:18] Thanks, Jeff.
Tim Wu: [00:54:18] thank you.
Jeffrey Rosen: [00:54:20] Today's show was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Mac Taylor and Lana Ulrich. Please rate, review, and subscribe to We The People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who's hungry for constitutional debates and who these days is not.
And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, engagements, and deep commitment to constitutional education of people like you who are inspired by our non-partisan mission of constitutional education and debate. Support the mission, become a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast, at constitutioncenter.org/donate. We've been getting some dollar donations and I so appreciate that wonderful sign of commitment and engagement, so keep them coming. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
