Antitrust: Google has to divest Chrome and Android - and maybe more

Key Points 

• Google has been subject to the court’s Executive Summary of the Plaintiffs’ Proposed Remedies following the decision that Google has abused its monopoly power 

• The plaintiffs will have until March 7, 2025 to file its revised proposal for the remedy 

• Google has reacted by calling the court document a “staggering proposal” 

  
  

This case was called the largest tech antitrust case since the US government’s antitrust case against Microsoft. This was a case that everyone was watching. This case had an August, 2024 decision regarding Google’s abuse of monopoly power, and some recent updates in November, 2024 regarding the court’s comments on the DOJ’s recommendations for the remedy. This article delves into recent developments concerning the fate of Google. 

What was the decision in August? 

As I wrote previously, the United States District Court for the District of Columbia filed its decision in August, 2024. After reviewing the relevant contracts, the court concluded the following: 

• The DOJ was able to show that Google had monopoly power in the general search services and general search text advertising 

• The DOJ was able to show that Google engaged in exclusionary conduct regarding general search services and general search text advertising—they blocked their rivals from the most effective channels of search distribution, namely out-of-the-box default search settings 

• The court questioned whether the exclusive distribution contracts appeared to significantly contribute to maintaining a Google monopoly. The court responded, “The answer is ‘yes.’” 

• The court declined to impose sanctions on Google for its failure to preserve its employees’ chat messages, but it made a point of saying that it was not condoning Google’s failure to preserve chat evidence 

As a result of the findings, the court concluded that Google violated section 2 of the Sherman Act, 15 US Code § 2. Section 2 states that: 

“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court” 

The court held that Google violated this provision by maintaining a monopoly in two product markets in the United States: General search services and General text advertising. Google accomplished this through its exclusive distribution Agreements. Consequently, Amit P. Mehta for the court stated that Google was liable.  

At that time, the court did not say what the remedy would be. People speculated, but no one knew for sure what would happen. We know that the DOJ was asking for sanctions against Google such as putting an end to exclusive agreements Google had with companies like Apple and Samsung, and prohibiting certain kinds of data tracking. The government wrote that it was also considering “behavioral and structural” remedies that would ensure that Google could not use its Chrome browser or Android phone in a way that advantages its search engine, but didn’t outline what the structural remedies would be. 

But now we know based on recent news that Amit P. Mehta for the court has spoken. 

What did the court decide about remedy? 

As can be seen from the recent Executive Summary of the Plaintiffs’ Proposed Final Judgement , Amit P. Mehta noted that Google’s ownership and control of Chrome and Android—key methods for the distribution of search engines to consumers—posed a significant challenge to effectuate a remedy that aimed to unfetter these markets from anticompetitive conduct and ensure that there remained no practices likely to result in monopolization in the future. 

For instance, Android had the issue of being a critical platform on which search competitors relied and for which Google had myriad obvious and not-so-obvious ways to favor its own search products. Moreover, the court stated that, to address these challenges, Google had to divest Chrome, which had fortified its dominance. 

Furthermore, the court stated that the DOJ’s Initial Proposed Final Judgment (remedy proposals), which were set out at the end of the court’s comments, ensured efficacy, efficiency, and administrability by deploying a Technical Committee to investigate and examine the issues that will invariably arise when dealing with implementing the remedies. 

The remedy had to restore incentives for innovation and disruptive entry that Google diminished. The court stated,  

“The remedy must prevent Google from frustrating or circumventing the Court’s Final Judgment by manipulating the development and deployment of new technologies like query-based AI solutions that provide the most likely long-term path for a new generation of search competitors, who will depend on the absence of anticompetitive constraints to evolve into full-fledged competitors and competitive threats” 

To that end, the court took note of the DOJ’s remedy proposals and commented on them: 

• Stop and prevent exclusionary agreements with third parties. An effective remedy had to prevent Google from entering into contracts that foreclosed or otherwise excluded competing general search engines and potential entrants, including by raising their costs, discouraging their distribution, or depriving them of competitive access to inputs. The proposed remedies were designed to end Google’s unlawful practices and open up the market for rivals and new entrants to emerge 

• Prevent Google from self-preferencing through its ownership and control of search-related products. It was necessary to divest Chrome to safeguard against the possibility of further foreclosure and exclusion of rivals and potential entrants including via self-preferencing. Indeed, the court commented that the Chrome default was a market reality that significantly narrowed the available channels of distribution and thus disincentivized the emergence of new competition. What’s more, following its divestiture of Chrome, Google would not be able to re-enter the browser market for five years, and own or acquire any investment or interest in any search or search text ad rival, search distributor, or rival query-based AI product or ads technology. If that were not enough, it was recommended that Google divest Android to provide further structural relief to prevent Google from improperly leveraging its control of the Android ecosystem to its advantage 

• Prevent Google from stifling or eliminating emerging competitive threats through acquisitions, minority investments, or partnerships. An effective remedy had to also ensure that Google could not circumvent the court’s remedy by providing its search products preferential access to related products or services that it owned or controlled, including mobile operating systems such as Android, apps such as YouTube, or AI products such as Gemini, or related data. Moreover, it would be necessary to prevent Google from engaging in conduct that undermined, frustrated, interfered with, or in any way lessened the ability of a user to discover a rival general search engine, limited the competitive capabilities of rivals, or otherwise impeded user discovery of products or services that were competitive threats to Google in the general search services or search text ads markets 

• Disclose data critical to restoring competition. Through its unlawful behaviour, Google accumulated a staggering amount of data over many years, at the expense of its rivals. It would be necessary to make Google’s search index available at marginal cost, and on an ongoing basis, to rivals and potential rivals and provide rivals and potential rivals both user-side and ads data for a period of 10 years, at no cost, on a non-discriminatory basis, and with proper privacy safeguards in place. Google would also have to provide publishers, websites, and content creators with data crawling rights (such as the ability to opt out of having their content crawled for the index or training of large language models or displayed as AI-generated content). Moreover, Google would have to syndicate its search results, ranking signals, and query understanding information for 10 years and syndicate its search text ads for one year  

• Increase transparency and control for advertisers. Google would have to provide advertisers with the information, options, and visibility into the performance and cost of Google Text Ads necessary to optimize their advertising across Google and its rivals. Google would need to include fulsome and necessary real-time performance information about ad performance and costs in its search query reports to advertisers and increase advertiser control by improving keyword matching options to advertisers. Google would also be prohibited from limiting the ability of advertisers to export search text ad data and information for which the advertiser bids on keywords, and Google would need to provide to the Technical Committee and Plaintiffs a monthly report outlining any changes to its search text ads auction and its public disclosure of those changes 

• End Google’s unlawful distribution. A comprehensive and unitary remedy in this case had to undo the effects on search distribution. Google would have to divest Chrome, which would permanently stop Google’s control of this critical search access point and allow rival search engines the ability to access the browser that for many users was a gateway to the internet. Also, Google would have to limit its distribution of general search services by contract with third-party devices and search access points and via self-distribution on Google devices and search access points to facilitate competition in the markets for general search services and search text advertising. Additionally, Google would be prohibited from preinstalling any search access point on any new Google device and required to display a choice screen on every new and existing instance of a Google browser where the user had not previously affirmatively selected a default general search engine. The choice screens would have to be designed not to preference Google and to be accessible, easy to use, and minimize choice friction. So that users better understand the benefits that Google’s rivals can provide, Google would have to fund a nationwide advertising and education program. The program could include short-term incentive payments to individual users as a further incentive to choosing a non-Google default on a choice screen 

• Allow for the enforcement of the proposed remedies while preventing circumvention. A remedy that prevents and restrains monopoly maintenance would require administration as well as protections against circumvention and retaliation, including through novel paths to preserving dominance in the monopolized markets. Google would have to appoint an internal Compliance Officer and establish a Technical Committee to assist the Plaintiffs and the court in monitoring Google’s compliance  

Ultimately, the court stated that the DOJ’s proposed remedies reflected extensive efforts to engage with market participants, use formal discovery, and collaborate with experts.   

As for the court’s plan, the plaintiffs will continue to investigate and evaluate the remedies necessary to restore competition to the affected markets; further, they reserve the right to add, remove, or modify the proposals as needed following further engagement with market participants and additional remedies discovery. They will have until March 7, 2025, a date on which they will need to file a revised proposal.  

Reactions to the court 

The next day, Google called the DOJ’s proposals a “staggering proposal” that would hurt consumers and America’s global technological leadership. More specifically, Google has stated that this extreme proposal would: 

• Endanger the security and privacy of millions of Americans, and undermine the quality of products people love, by forcing the sale of Chrome and potentially Android 

• Require disclosure to unknown foreign and domestic companies of not just Google’s innovations and results, but even more troublingly, Americans’ personal search queries. 

• Chill our investment in artificial intelligence, perhaps the most important innovation of our time, where Google plays a leading role 

• Hurt innovative services, like Mozilla’s Firefox, whose businesses depend on charging Google for Search placement 

• Deliberately hobble people’s ability to access Google Search 

• Mandate government micromanagement of Google Search and other technologies by appointing a “Technical Committee” with enormous power over your online experience. 

Lastly, Google stated the following: 

“DOJ’s approach would result in unprecedented government overreach that would harm American consumers, developers, and small businesses — and jeopardize America’s global economic and technological leadership at precisely the moment it’s needed most. As the Court said, Google offers “the industry’s highest quality search engine, which has earned Google the trust of hundreds of millions of daily users.” We’re still at the early stages of a long process and many of these demands are clearly far afield from what even the Court’s order contemplated. We’ll file our own proposals next month, and will make our broader case next year” 

In terms of other industry reactions, some liken Chrome to losing a left foot—selling it is valuable to the person, but not very valuable to anyone on its own. Others were very negative and called the court’s decision “dumb”. Some think that Google will create a workaround. Others, like DuckDuckGo, are more optimistic that the decision will lower barriers to competition. 

What happens next? 

There is no question that Google will be appealing the August, 2024 decision along with any decision regarding punishments. It will be hoping that it has more luck with the new administration. It said as much in its reaction to the news. Indeed, the new administration may not take a similar stance against Big Tech going forward, and may reverse such a decision on remedy similar to what happened in the past with Microsoft.