But if Mehta goes ahead with this approach, he should introduce some improvements to the EU rules, says Kamyl Bazbaz, DuckDuckGo’s senior vice president of public affairs. Users should see the selection screen periodically, not just once, Bazbaz says. They shouldn’t have to deal with pop-ups from Google urging them to change the default app to Google, he adds. And when users first interact with a competing search app, there should be an easy way to set it as the default app.
These additional measures may make it easier for some users to leave Google, while others may become frustrated by recurring requests.
Order a divestment
Contract bans and selection controls are examples of conduct remedies, but in recent years the Justice Department has expressed a preference for what are known as structural remedies, or the breaking up of parts of a company.
The most famous is the breakup of the telephone giant Bell in the 1980s, which gave rise to a number of independent companies, including AT&T. But the courts don’t always agree. When Microsoft lost an antitrust battle in the 1990s, a federal appeals panel rejected an order to break up the company, and Microsoft eventually decided to implement a series of behavioral changes.
Regulators prefer a one-time sale in part because it doesn’t require them to invest in monitoring companies’ ongoing compliance with corrective measures. It’s a much clearer solution, and some antitrust experts argue that structural measures are more effective.
The challenge is determining which parts of a company should be separated. John Kwoka, an economics professor at Northeastern University who recently served as an adviser to FTC Chairwoman Lina Khan, says the key is identifying businesses where Google’s ownership is “distorting their incentives.” He says that, for example, separating search could open the door for Google’s Android to be partnered with a different search engine.
But Hovenkamp doubts that selling Google Search would increase competition, as the service would still be popular. “Selling Google Search would simply transfer the domain to another company,” he says. “I don’t know what kind of split would work.”
Some financial analysts who study Alphabet, Google’s parent company, are also skeptical. “Alphabet’s scale, continued strong execution and financial strength mitigate this legal risk and the potential financial and business model ramifications that result from it,” said Emile El Nems, vice president at Moody’s Ratings, in a press release.
Other legal experts envision a future in which search results would come from Google and experience ads would come from another company that would be separated from Google. It’s not clear how such a solution would affect users, but it’s possible that ads would end up being less relevant and more intrusive.
Sharing with competitors
Mehta concluded in his ruling that Google offers users a superior experience because it receives billions more queries than any other search engine and that data drives improvements in the algorithms that decide which results to display for a particular query.
Rebecca Haw Allensworth, a law professor at Vanderbilt University who is following the Google case, says one of the most aggressive solutions would be to require Google to share data or algorithms with its search competitors so they, too, can improve. “Courts don’t like to force rivals to share data in that way, but on the other hand, the judge seemed very concerned about how Google’s conduct has deprived its rivals of what they really need to compete: scale in search data,” she says. “Forcing data sharing would directly address that concern.”
