Advocates Push for Public Real-Time Audio Access to Tuesday's DOJ-Google Trial

Advocates of the October 2020 antitrust case by DOJ and 11 states against Google expanded in a Wednesday news briefing on their Friday third-party motion (docket 1:20-cv-03010) for U.S. District Judge Amit Mehta for the District of Columbia to allow a publicly available audio feed of the unsealed portions of the trial. The case, which alleges Google's "exclusionary agreements" cover about 60% of all general internet search queries, with half the remaining queries funneled through Google owned-and-operated properties, is set for trial Tuesday.

American Economic Liberties Project (AELP), Demand Progress, Open Markets Institute and Revolving Door Project moved the court to make a telephone feed available to the public, saying the issues to be decided in the case are “are of national importance and will potentially affect how nearly every person in the United States accesses and uses the internet.” The public interest in the trial is “significant and clear,” so the trial “should remain as open to the public as possible,” said the motion.

Google opposes the motion, said Katie Van Dyck, AELP senior legal counsel, on the Wednesday Zoom briefing. Google told the court that “somehow hitting mute on an audio line is more administratively difficult than emptying the court multiple times a day,” Van Dyck said. The reason for the motion is “about the public’s right of access to trials and holding Google accountable for its behavior,” she said. The public’s right of access is “firmly rooted in the First Amendment” and is “critical to democracy” and “accountability.”

A video feed of proceedings is unlikely, participants said. Mehta didn’t give a timeline for when he would rule on public access when Van Dyck spoke to the court Friday. The focus of the court seemed to be on a “telephone line that the court already has … likely a dial-in line,” she said. The odds of a video feed “are very, very slim" and the AELP didn’t request one "because the D.C. court has stricter rules than other courts about broadcasting courtroom proceedings,” which are generally prohibited, she said. The AELP believed the court would be “more receptive” to a telephone audio feed that’s “not technically a broadcast vs. a full live video feed.”

Demand Progress Communications Director Maria Langholz cited Google’s dominance of the internet search market, with 90% of global web searches. “Google wants you to believe that it achieved this monopoly by making a better product,” Langholz said, but “its dirty secret is that it’s been abusing its power” and forcing rivals out of the market. Lack of competition is “a disaster for anyone who’s trying to use the internet,” she said.

Langholz claimed the search experience via Google has worsened over the past decade, “now focusing more on delivering lucrative ads than on providing useful information.” Increasingly, search results bring users back to Google’s own products, such as YouTube, so “Google can show you more ads and gather more of your data.” She called DOJ v. Google “the first monopoly trial of the modern internet era,” saying it could be the most important antitrust case of the century. “Because of Google’s enormous stranglehold on the internet, the trial outcome will affect the digital lives of billions of people,” Langholz said. Because of general court rules, the trial is unlikely to be publicly accessible in real time, “unless Judge Mehta says otherwise.”

The Google trial could set a far-reaching precedent “for how we’re able to check big tech’s power, either empowering antitrust advocates to crack down on runaway corporate power on the internet, or making it even more difficult to rein in big tech giants,” Langholz said. The ramifications of the trial aren’t just about Google’s power but extend to Amazon, Apple, Verizon, Meta and other tech giants that are “dominating the modern economy,” she said. The question of how powerful the tech companies are allowed to become “hangs in the balance."

Public Knowledge Vice President Charlotte Slaiman said advocates have been sounding an alarm about Google antitrust violations for years. She reflected on innovations on the internet that might have been thwarted “because of Google’s power.” Even if the suit has the desired outcome for DOJ supporters, “we will still need new laws and rules,” Slaiman said: “We need to strengthen our antitrust laws broadly” and address “self-preferencing concerns, not just in search, but in other digital platforms.” That includes addressing in Congress app store concerns, breaking up "the ad tech stack” and creating "a new digital regulator."

On the potential remedies that could arise from the DOJ’s case, Van Dyck suggested a favorable outcome could result in “opening up the ability to compete with Google on search.” That could include “requiring Google to divest certain arms of its business, such as Google Chrome.” Another potential outcome could be mandating that Google license its web-crawling service to other search engines to allow competition.

PK’s Slaiman said content creators online today are trying to optimize for Google’s algorithm, but without Google’s hold on the market, “we could also see different kinds of content online being rewarded if there was really competition and different options for people to go for.” Better quality control in search is a competitive innovation that could arise out of favorable remedies in the case, said the panel.

Van Dyck said she has found on Google searches that the top five results listed for a product or company are often that company’s competitors “who’ve paid for being at the top. Then I finally get to the company I’m looking for halfway down the page.” She called those types of search results “serious skewing of competition.”

Commenting on the user experience impact of Google’s domination in search, Sacha Haworth, Tech Oversight Project executive director, referenced a recent headline that said: “It’s not your imagination; the internet is getting worse.” That’s how she feels about using Google Search, she said. In addition to data privacy questions, which aren't at issue in this trial, “it used to be you could search for something and have confidence that ‘the best of the internet’ is getting to you,” she said. Google searches used to provide the best information, rather than a means for Google to profit from searches, Haworth said. “Over time, they’ve optimized these search results to present not the best of the best, but their products -- the things that make them money” through advertising, she said.

Tech Oversight Project released a report Wednesday in commemoration of Google’s 25th anniversary. The report referenced a Vox article noting Google had a mantra in its early days: “Don’t be evil.” That included not allowing advertisers to “buy their way to the top of search results, don’t charge people to find information,” and “don’t spam people with banner ads on the homepage,” said the report.

“Google has strayed far from those idealistic roots,” said the report, saying the company is a “willing purveyor of disinformation and political radicalization,” a “threat to national security and human rights,” a danger to children’s well-being, has a company culture “rife with racism, sexism and censorship,” profits from climate disinformation, abuses consumer data and privacy, and is a "monopolistic corporate empire intent on anticompetitive behavior.” Google didn’t comment.