Anika Begay
But if Mehta pursues this approach, it should bring some improvements to the EU rules, says Kamyl Bazbaz, senior vice president of public affairs at DuckDuckGo. Users should be prompted with the choice screen periodically, not just once, Bazbaz says. They shouldn’t have to deal with pop-ups from Google urging them to change their default to Google, he adds. And when users interact with a competing search app for the first time, there should be an easy way to set it as the default.
With these additional measures, some users may find themselves abandoning Google more reliably. Others may be frustrated by the recurring requests.
Order a transfer
Contractual prohibitions and choice screenings are examples of conduct remedies. But the Justice Department in recent years has expressed a preference for what are known as structural remedies, or breaking up parts of a business.
The most famous is the 1980s split of telephone giant Bell, which created a series of independent companies, including AT&T. But the courts aren’t always on board. When Microsoft lost an antitrust battle in the 1990s, a federal appeals panel rejected an order to split the company, and Microsoft eventually settled for a series of policy changes.
A one-time sale is favored by regulators in part because it doesn’t require them to invest in monitoring companies’ ongoing compliance with conduct remedies. It’s a much clearer break, and some antitrust experts argue that structural remedies are more effective.
The challenge is figuring out which parts of a company need to be separated. John Kwoka, an economics professor at Northeastern University who recently advised FTC Chairwoman Lina Khan, says the key is to identify companies where Google’s ownership is “distorting its incentives.” He says that, for example, cutting off search could open the door to Google’s Android partnership with a different search engine.
But Hovenkamp is dubious about the potential of a search sell-off to increase competition, because the service would remain popular. “Selling Google Search would just transfer dominance to another company,” he says. “I don’t know what kind of separation would work.”
Even some financial analysts who study Alphabet, Google’s parent company, are skeptical. “Alphabet’s scale, continued strong execution and financial strength mitigate this legal risk and the potential financial and business model ramifications that come with it,” Emile El Nems, vice president at Moody’s Ratings, said in a press release.
Other legal experts envision a future in which search results come from Google and in-experience ads come from another company spun off from Google. It’s unclear how this remedy would affect users, but it’s possible that ads could end up being less relevant and more intrusive.
Force Google to share
Mehta found in his ruling that Google offers users a superior experience because it receives billions more queries than any other search engine, and that the data fuels improvements to the algorithms that decide which results to show 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 remedies would be to force Google to share data or algorithms with its search competitors so they can improve, too. “Courts don’t like to force sharing between rivals in this 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: scaling search data,” she says. “Forcing data sharing would directly address that concern.”
