Enforce Antitrust Law Against Google
The tech giant is a whole new kind of monopoly, but it calls for the same course of action that any monopoly would.
Just one month before the Presidential election, antitrust is in the air. The House Judiciary Committee released its report on antitrust enforcement Tuesday, and Attorney General Bill Barr is reportedly pushing to bring an antitrust case against Google as soon as possible.
Conservatives have not traditionally been the party of antitrust; there is a common intuition among Republicans that the free market will resolve any of the abuses of individual companies, and that enforcement would stifle competition and innovation.
But when it comes to Google, the winds of change are here. While Facebook, Twitter, Amazon, and Apple have all been subject to conservative critique at times, no company is more in the crosshairs than the search giant—and no company has done more to invite conservative scrutiny.
Conservatives should indeed seek antitrust enforcement against Google. Google’s brazen censorship is as much a product of its monopoly power as its anti-conservative bias. Ending Google’s antitrust amnesty—and enforcing the laws on the books—is both legally sound, and an important component of any project to remove the sword of Damocles hanging over conservatives online.
ANTI-CONSERVATIVE BIAS + MONOPOLY POWER = TROUBLE
A Wall Street Journal investigation revealed that Google is not the impartial platform it purports to be. Google, according to the WSJ, made algorithmic changes to favor bigger businesses over small ones, made behind-the-scenes adjustments to features like “auto-complete,” and maintained blacklists of websites.
Beyond the WSJ’s reporting, there is plenty of evidence of Google’s mistreatment of conservatives. Social media users flagged last year how Google mysteriously removed any hint of Hillary Clinton’s email scandal from their autocomplete results, while other major search engines featured the suggested search prominently. There was also the instance of The Federalist being temporarily demonetized based on misrepresentations made by an NBC journalist, and a ton of reporting from Breitbart’s Allum Bokhari about the reaction of the company to President Trump’s election in 2016. (Surprise: they weren’t happy about it).
Consider also the recent, temporary disappearance of a number of conservative websites from Google search results. In September, a “glitch” on the Google website led to a number of websites simply disappearing from their search results, including Breitbart, the Daily Caller, and my own publication Human Events. Google’s PR department insisted this was all a misunderstanding, suggesting that their algorithm isn’t even slightly biased.
That said, Google’s anti-conservative bias alone is not the problem: the issue is the combination of that bias and Google’s monopoly power. As the House Judiciary Committee report notes, Google receives roughly 80% of all search queries on desktop, and over 90% of all search queries on mobile. This dominance means that conservative consumers have few remedies for Google’s abuses: if you are a news website, and you lose 90% of your incoming traffic from search engines, that’s the ballgame.
Moreover, a common intuition of conservatives is to assume that such abusive and consumer-unfriendly practices can be competed away; a Google competitor should come along, provide service to an underserved market, and solve the abuses. But it’s the existence of a competitive market in the first instance that would make this possible, and that clearly does not exist in search: as the Judiciary Committee report notes, Google’s closest competitor, Microsoft’s Bing, captures only 6% of the general online search market.
If monopoly power is part of the problem, then antitrust enforcement is part of the remedy. Antitrust law exists to punish anti-competitive behavior and the exploitation of monopoly power. Google may be exploiting that monopoly power in a novel way; instead of trying to extract monopoly profits, they are trying to use their power to impose their political preferences on the country writ large. But exploitation is exploitation, and our government should not turn a blind eye.
The next steps for Congress and the executive branch are straightforward. First, Congress needs to provide additional resources to the FTC and DOJ to prosecute antitrust cases. The total budget of the FTC is roughly $330 million, and that’s spread between antitrust and consumer protection. Meanwhile, the DOJ’s Antitrust Division has $180 million in total.
That might seem like a lot, but it’s chump change in comparison to the resources that Google can bring to bear. Google has a market cap of one trillion dollars; they could spend an amount equal to DOJ’s entire antitrust budget without breaking a sweat. Congress needs to redress this imbalance; otherwise, Google can confidently wage a legal war of attrition against the government.
Second, Congress should look to clarify existing antitrust law to make it easier for our enforcement agencies to bring cases. In a number of different doctrinal areas, including predatory pricing and potential competition, the Supreme Court has developed the law in a manner that makes it nearly impossible for plaintiffs to prevail. But the Supreme Court is simply interpreting laws passed by Congress; Congress itself can clarify the law and make the doctrine more consumer-friendly and less Google-friendly.
Both of these recommendations—to increase funding for antitrust enforcement, and to clarify antitrust law to make it easier to prosecute—are in Rep. Ken Buck’s minority report in the House Judiciary Committee’s antitrust investigation. Not all House Republicans signed on to Buck’s report, due to its stringent criticism of Big Tech’s abuses and its openness to the use of antitrust enforcement. That is a shame; conservatives should not stand idly by while Google wields its monopoly power against them.
As for DOJ, the remedy is simple: it’s time to bring an antitrust enforcement action against Google. No more amnesty. There have been reports for weeks that Bill Barr has been pushing for a case to be brought, in the face of internal resistance from career prosecutors. As the head of DOJ, Barr must and will prevail, and the DOJ should ensure that Google is not above the law.
None of these antitrust efforts directly target Google’s anti-conservative bias, but they should be supported nonetheless; by weakening Google’s monopoly power, and in conjunction with efforts to reform Section 230, antitrust enforcement can open up the space for new companies to compete with Google’s censorship machine. That’s something any conservative who wants an open, competitive internet where conservatives can express themselves freely should support.
Will Chamberlain is the publisher of Human Events and serves as Senior Counsel to the Internet Accountability Project.