Executive Summary

• After successfully showing that Google unlawfully maintained a monopoly in general search services through default search agreements, the Department of Justice (DOJ) has proposed a series of remedies to address the anticompetitive practices at issue in the case.
• Most notably, the DOJ has asked the court to force Google to divest its chrome web browser, as well as its Android mobile operating system if the other remedies prove ineffective, due to concerns that Google could self-preference its search product.
• While some of the proposed remedies could address the harms found by the court, many of the proposed remedies, such as forcing Google to divest Chrome, are largely unrelated to the specific anticompetitive default search agreements and would ultimately harm consumers and competition.

Introduction

On Wednesday, the Department of Justice (DOJ) filed its proposed final judgment against Google in its landmark search case, asking the court to impose a variety of remedies relating to default search agreements and access to data. Most notably, the DOJ asked the court to impose structural remedies on Google, including a divestment of its Chrome web browser and potentially its Android mobile operating system if the other remedies prove insufficient to promote competition.

In the initial decision, the United States District Court for the District of Columbia found that Google had acquired monopoly power in general search and search text advertising through successful competition on the merits, which does not violate the antitrust law. It did find, however, that Google maintained that monopoly power through what the court described as exclusionary agreements that allowed Google to be the default search engine on web browsers and mobile operating systems. As such, the court must now impose remedies to address the harms and promote competition.

While some of the remedies recommended by the DOJ could promote competition, much of the agency’s proposal, especially the proposed structural remedies, go well beyond the conduct at issue and could ultimately harm competition. Google integrates search functionality into Chrome and in its Android devices to improve consumer experiences. This, in turn, allows Chrome to better compete with rival products such as Microsoft’s Internet Explorer and Apple’s iOS mobile operating system. The court has the authority to impose remedies to restore competition and prevent future harm, but in doing so, it should ensure that the remedies are actually designed to restore competition and not to simply punish Google for being successful.

Initial Decision

On August 5, the U.S. District Court for the District of Columbia released an opinion finding Google violated Section 2 of the Sherman Act, holding that it illegally maintained a monopoly in online search and search text ads. In a major win for the DOJ, the opinion held that both general search services (search engines such as Google and Bing) and search text advertisements (advertisements that appear as a normal search result) are relevant product markets in which Google has monopoly power. Of note, the opinion found that Google entered into anticompetitive agreements to become the default search engine on web browsers and mobile devices, harming competition as a whole.

DOJ’s Proposed Final Judgment

Courts generally have some flexibility to impose a variety of both structural and behavioral remedies for antitrust violations to “prevent future violations and eradicate existing evils,” meaning a court can impose conditions to “terminate the illegal monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain no practices likely to result in monopolization in the future.” Generally speaking, the remedies should be the least-restrictive means to eliminate competitive concerns and should not be used to engage in industrial planning or non-competition purposes.

In the proposed final judgment, the DOJ suggests six remedies. First, it seeks to prevent Google from entering into contracts in order to make Google the default search engine. Second, it seeks to force Google to divest Chrome, Google’s web browser, as well as Android if the other remedies fail to restore competition. Third, it seeks to impose conduct remedies that would prevent Google from preferencing its search function on other products and services that it owns, such as YouTube or its AI product Gemini. Fourth, it seeks to require Google to make its search index and data available at marginal costs to rivals to allow them to reach a competitive scale. Fifth, it seeks to impose transparency conditions on advertisers using Google’s search text ads. Finally, it seeks to limit default distribution agreements, such as agreements with Apple to preinstall Google Search on iOS devices in exchange for anything of value.

The Proposed Remedies Could Harm Competition

While some of the proposed remedies could address the harms the court found, many of the DOJ’s proposed remedies go well beyond the specific concerns of the case and address conduct the court never found to be anticompetitive, meaning the remedies could ultimately harm competition in a variety of markets.

At the outset, preventing Google from entering into agreements to be the default search engine for web browsers or mobile devices is a reasonable remedy, as are the remedies to limit distribution agreements. While these agreements can provide significant consumer benefits and allow for competition in ancillary services, the court found that these specific agreements were anticompetitive and violated the law. Therefore, unless Google can successfully appeal the decision, imposing conditions that prevent Google from engaging in the conduct that violated the law are logical. The court should remain cognizant, however, that imposing such conditions could harm competition in other markets — 80 percent of Mozilla’s operating budget comes from its default search engine deal with Google, for example.

The DOJ goes further, however, arguing that additional remedies are needed because by illegally maintaining its monopoly, Google has acquired scale with which its rivals cannot compete. Remedies such as forcing Google to grant rivals access to its data could theoretically give other search engines an opportunity to improve their services, but it also disincentivizes Google from improving its functionality. If Google invests, for example, in Gemini AI so that it can use the data to improve its general search product, those investments provide less value because Google’s rivals will receive similar benefits at almost no cost. Further, it disincentivizes Google’s rivals from investing in their own products, potentially foreclosing the development of rival offerings with unique functionalities. The court must carefully consider these balances when evaluating how to remedy Google’s scale advantages.

But the most problematic proposals from the DOJ are structural. As the DOJ argues, Google’s ownership of Chrome makes it near impossible for rivals to compete because of how many search queries go through Chrome’s address bar, in which Google is the default search engine. As the court made clear in the initial decision, however, Google achieved its scale and monopoly power in general search through offering a superior product, and Chrome is no exception. By integrating different products into the Chrome browser, Google created a superior offering that benefited consumers and, unsurprisingly, consumers have largely chosen that product.

If the court accepts the DOJ’s proposal, it will eliminate many of these efficiencies and ultimately have little effect on competition because consumers will still choose to use Google search on their browsers. Further, as Google has argued, forcing divestiture of Chrome or Android could raise security and privacy concerns, as user information will be collected and stored by more entities, potentially opening new attack vectors for malicious actors. Finally, forcing Google to divest Chrome or Android may ultimately have little effect on the ability for other search engines to compete, as many consumers will still choose Google as their default browser on these applications. The only difference is that now consumers must take additional steps to get the product they want.

Conclusion

The DOJ’s proposed remedies in the Google case could address the specific conduct that violated the law, but the court should carefully evaluate the broader competitive implications of the proposals. Competition in online markets is dynamic, and the court could inadvertently harm consumers or competition. As such, the court should impose only those remedies necessary to restore competition.