DOJ antitrust chief is ‘overjoyed’ after Google monopoly verdict

t’s the biggest antitrust win against a tech company since the Microsoft case in the late ’90s and early 2000s — and it promises to shake up the entire tech landscape. For example. Google was paying Apple $20 billion a year to be the default search engine on iPhones and Macs, and that kind of arrangement will be under the microscope now.

So I wanted to know what Jonathan thought of the ruling, what it means for the law, which appears to be coming back to a more practical and intuitive version of antitrust from the extremely technical and economic approach that’s been used since the ’80s. Most importantly, I wanted to know what remedies he’s going to seek to try and restore competition in search. The European Union has been trying to do that for a very long time, and I wanted to know what Jonathan has learned from those approaches, and what new ideas he might have.

I’ll just warn you: Jonathan is a very good lawyer and he is very good at not answering questions — in fact, you will hear him flat out say he’s not going to answer the question several times throughout this conversation. But there’s a lot here about his approach to antitrust, an approach that was just validated in a major way and which will inform the major cases yet to come against Apple, Google’s advertising business, and more.

One note before we start: You’ll hear us talk about brown shoes. That’s Brown Shoe v. United States, a Supreme Court case from 1962 that laid out a practical test for defining a market in an antitrust case. It’ll make sense when we get there.

Okay, Assistant Attorney General Jonathan Kanter. Here we go.

This transcript has been lightly edited for length and clarity. 

Jonathan Kanter, you are the assistant attorney general for antitrust at the United States Department of Justice. Welcome back to Decoder.

Wonderful to be back with you.

There’s a lot to talk about today. You are here because the government just won a major antitrust case against Google. Tell us about that.

We brought a case alleging that Google monopolized various markets in the search industry, and just this week, we won that case with an extensive opinion by a federal court here in Washington, DC.

That opinion is 280-plus pages. Yesterday, I described it to my colleague Sarah Jeong as “readable,” and she looked at me and said, “I think you have a very different definition of ‘readable’ than other people.”

The conventional wisdom about this case and that decision is that it is entirely about the payments Google makes to Apple to be the default search engine on iOS. Are those payments illegal now?

I want to be very careful here. This is still active litigation.

We are heading into the remedy phase, so I can talk generally about the case. And what I would suggest is —given that you’ve read all 280-plus pages — you’ll probably observe that the case is about a lot more than that. The case is about the ingredients that go into creating and maintaining a monopoly, whether it’s the scale that you need for crawling and indexing, the data that you need from a click stream and from queries, and the distribution necessary to get the queries that you need in order to generate the scale that you need, and then, of course, the advertising revenue that you need in order to maintain that capital-intensive business. All of that is discussed at length in the court’s opinion.

But the heart of it is the distribution, as you just mentioned. Paying for distribution for search that no one else can get.

The heart of it, in this case, was Google imposing conditions on access to distribution. So, in exchange for getting payments, there were requirements that we alleged and the court agreed were exclusionary, meaning that it would limit the freedom of third parties to work with Google’s rivals.

Some of those conditions are about being the default. Some of those conditions, particularly as it relates to Apple, are about how good Apple can make its own search products. The court found that the agreement with Apple limited how good could make Siri in some cases, or Spotlight in some cases. Are those kinds of things not allowed generally? Or is that just in this case?

Each antitrust case is very fact-specific, and when you’re dealing with a monopolization case, everything has to be looked at in context. The context starts with, well, how big is the company? How powerful is the company? What are the elements and ingredients that make a company that power durable? And then, has the company engaged in exclusionary conduct, including exclusive or exclusionary contract provisions that might harm competition or threaten the ability of rivals to develop and have their full competitive impact?

In this context, we have a situation where a company with a significant degree of monopoly power is imposing contractual terms that limit the freedom of others to innovate at will and especially to innovate in ways that might threaten the dominant firm competitively. That’s very standard in terms of being an antitrust concern.

I want to come back to competition, I want to come back to Apple, and I want to talk about innovation generally, but I want to start with just some antitrust basics. 

There is a lot in this decision that went your way. In particular, it seems like every tech antitrust case has run up against angst and noise in market definition _ just saying what the market for the product is. I’m thinking of Facebook basically arguing its way out of the idea that a market for social networking exists, and Facebook is in that market. But here, you’ve got the market definition. There’s a market for general search, and then the court found a market for text ads in search and that Google had monopoly power in that market and it used that monopoly power in anticompetitive ways. Did you get everything you wanted from that part of the decision?

We got a decision that came out in our favor, and so we’re overjoyed.

Did you get everything you wanted from that part?

We wanted the law to be enforced, and so we got that, yes.

Listen, there are a number of different markets. What we wanted to make sure is that we had the ability to articulate that Google has and exercised a degree of power. Market definition, which is a very technical antitrust term, is really just a tool. It’s a tool to help understand: is there an area of commerce where a company has power? Well, how do you gauge its power? Well, you understand, is it big or powerful relative to others in the market? Is the market competitive? How many other competitors are out there?

You have to ask the question, well, how many other competitors of what? We typically define a market, which is the process of saying, “What is the competitive set? Who are the range of rivals that might potentially threaten a firm that’s alleged to have monopoly power?” And so to do that, we define a market. We say, “What are the general boundaries of the competitive set?” Once we define a market and establish that a firm has a high enough market share or enough monopoly power in that market, then the question is, did they do something either to legally obtain or maintain that monopoly power?

But again, so much of tech antitrust thus far has been furiously arguing about market definitions. Even in this case, you argued that there was a market for general search, and Google argued that the market was actually answering all queries on the internet — that open text boxes on the internet is the market Google plays in. The court ruled for you — it held that there is a market for general search engines. Do you think that’s starting to get clearer, how to make these arguments, how to define these markets?

Yes.

That seems like the problem thus far.

Yes. Market definition ends up being an issue in every antitrust case because the questions that I just presented — which [are]: How big is the company? Who do they compete with? — comes up whether it’s bricks and mortar or ones and zeros. It is just a fundamental question in almost every antitrust matter, certainly every civil antitrust matter.

One of the things that we’ve been grappling with in antitrust is how do we apply that in the tech world? How do we apply it in a world where you might have a multi-sided market? Where you might have a platform where the services are given away to one side of the market for free and monetized in a different manner? Where there are significant network and feedback effects? Where competition might emerge not from a product or service that looks exactly like the one that is alleged to have monopoly power, but might be a new, disruptive force in the market?

We have to understand all of those dynamics in order to explain to a court why an issue may or may not be a problem. I think we’ve gotten a lot better at that. I think we’ve gotten a lot better at understanding how to define markets and bring antitrust cases. One of the ways in which we’ve been able to do that is by making sure we understand how the products work and hiring technical experts and technologists, and also understanding how consumers behave in the wild, in the tech industry.

Our first day of trial, we put forward — and this was, to my knowledge, the first time the government’s ever done this — a behavioral scientist to explain how consumers react to defaults and default settings. How often consumers might or might not switch the default in a browser or on a phone. Why things that might seem small or small, little points of friction that exist inside software might have an outsize effect on the way an individual reacts. These are things that we are now incorporating as standard fare as part of our antitrust investigations and, in this case, as part of our litigation.

There were two ways the courts evaluated this. One is what you’re talking about. There was a study from inside Google you brought forth saying people didn’t even notice when you switch from Google to Bing on iPhones, so Google itself knows it. 

You and I have talked about this before. When I was in law school, all antitrust was deeply economics-based. It was mathematical. It was opaque. The court here went back to a case called Brown Shoe Co. from 1962. It said, “There are practical indicia of market power.” And one of them is just like, “Yeah, everyone talks about it this way.” There’s obviously a market for general search. 

And then the court also went to when people buy search advertising or they buy advertising on the internet, they’re allocating their money in a way that doesn’t substitute for other products, like TikTok ads or something. 

Is it the combination? Is that the approach now, you’re trying to cover the waterfront? Or is the more practical, “hey, let’s just be honest here” approach starting to come back to the forefront?

It’s all of the above, but I think we lost sight of the practical indicia, which has been at the core of antitrust, going back so many years. And you mentioned the Brown Shoe case. What is really happening in the marketplace? What is it that we’re trying to measure? And to do that, you have to start with understanding how this stuff works. Is something truly a substitute?

Well, let’s figure it out. Let’s look at your documents. Let’s understand what consumers think. Let’s see how they behave in the wild. Let’s start with the facts and work backward from that. And I think, for a long time, antitrust tried very hard and, I think, developed some very useful tools, quantitative tools, to help understand and assess these kinds of questions and regression analyses and surveys. And those are valuable, but it only tells you so much. You have to start with asking, well, how does this stuff really work? What are the practical indicia?

You won on the market definitions for general search engines and for text ads on the search results page. 

The court ruled against you in a couple of ways that are important as well. It found that Google lacked monopoly power in search advertising generally — it actually found there isn’t a market for general search advertising. This case is certain to be appealed. Do you think you will bring that up on appeal?

Too soon to say.

I won’t comment on the appeal other than to say, for us, it was really important to make sure that we were putting forward two general categories of harm. One is the way in which users interact with the search engine from the perspective of the user and the way in which advertisers buy advertising that appears in a search engine. And I’m gratified that we were successful in defining markets and proving harm on both fronts.

It’s all but certain that Google is going to appeal. It sounds like you are going to appeal as well if they do?

I would not necessarily take that from this conversation. What I would take is I am not commenting one way or the other, up or down, can’t confirm or deny. I’m just observing what was in the opinion.

In general, the Department of Justice, the Federal Trade Commission — you and Lina Khan — have pursued some newer theories of antitrust. You’ve been careful several times in this conversation already to say, “This is the heart of antitrust. We’re getting back to where it was,” but it’s  gotten away from, “Hey, just look at practical indicia.” It’s gotten away from, “Let’s look at the realities of the market.” You’ve had to pursue some newer theories of law. You’ve had to take some shots at cases that may or may not win. This one, obviously, you’ve won. Do you think it’s swinging your way now on changing how antitrust law works?

Well, I’m going to look at the cases that we’ve brought and that we’ve won, right? Obviously, there’s the case that came down this week, the Google case, which probably sits on the Mount Rushmore of antitrust cases. We’re really proud of our victory here.

We brought a case involving JetBlue’s proposed acquisition of Spirit Airlines, and the theory in that case was that the harm would be on cost-conscious flyers, and the court agreed. It took a practical approach and said that these airlines focus on people who care about price and who care about making sure that they can afford air travel, whether it’s a student flying home to see her family during a break or a family of four trying to afford a much-needed vacation.

We brought a case involving book publishers and the merger of book publishers and how the harm would not necessarily be, although it could have been, in the higher price of books but would result in the exercise of power against authors who rely on advances in order to produce professional works.

These are obvious concerns from the perspective of the public, as far as we believe, and I don’t view them as novel antitrust issues; they’ve just been forgotten. We haven’t had the opportunity to see as many cases involving these kinds of issues over the last few decades because we in the government haven’t been as aggressive or as proactive in bringing those cases.

But what we have found is when we present courts with facts that are solid, when we prevent courts with legal theories that, as you indicate, go back to the heartland cases of antitrust law, and we do a good, solid job presenting our cases to a court in telling a coherent story that holds up on the facts and the law, that not only do we win, but we win decisively.

I’m going to get real nerdy with you. What we’re really talking about here is dating back to the ’80s and Robert Bork, the introduction of the consumer welfare standard in antitrust that said you have to have prices that go up. And then you have this big problem where a lot of tech companies have free products, and it’s hard to measure the prices, and we’ve been stuck there.

Here the court looked at general search engines and said, “Well, they’re free, but this one is obviously a monopoly. And Google has obviously acted anticompetitively to maintain that monopoly.” It did not really look at pricing in the general search category. It looked at pricing in the advertising side because there are prices there, but you were able to overcome this “you have to find a price that goes up” problem. 

Is that the beginning of a trend, do you think? Are you going to be able to pursue this more aggressively across the tech industry?

I think it’s the restoration and validation of a core element of antitrust — the purpose of antitrust law is to protect competition and the competitive process. The idea is that rivalry and competition leads to the kind of economic freedom and opportunity that we value in our society.

As we think about our antitrust cases in tech, we go back and look at the journalism industry. For decades, there were antitrust cases involving radio and involving newspapers, many of which were offered to consumers for free and then monetized through the selling of advertising. In fact, one of the most significant monopolization cases in history is the Lorain Journal case, which involved newspapers and advertising.

So, these issues are not necessarily new. They’re just being presented to the world in new flavors, which is technology. But I think we have to start from the premise of, well, what is it that we care about? What we care about is competition. What is problematic? Well, what’s problematic is monopolization or illegal maintenance of monopoly. And what is it that we’re trying to do, is we’re trying to create openings and opportunities for others to compete. And if we go back to those basic principles, I think we can find our true north and enforce the law effectively.

So, that’s the big context that’s inside of the law — the law is changing, and you’re pursuing big cases inside of the changing law. I think that’s how you end up with Google on the Mount Rushmore antitrust cases.

Let’s talk about this case itself and what happens now. I know you’re not talking about whether or not you’re going to appeal, but Google is. Google is going to appeal. They’ve said they’re going to appeal. Kent Walker, who is president of Global Affairs at Google, sent us a statement: “This decision recognizes that Google offers the best search engine, but concludes we should not be allowed to make it easily available. We’ll remain focused on making products that people find helpful and easy to use.” 

He’s basically saying, “Look, we make the best product. The court said we made the best product. Now that’s illegal?” How would you respond?

I will go back to the words of the decision. The court found that Google is a monopolist and that it illegally maintained its monopoly power, so I’ll leave it there.

Apple’s Eddy Cue was a witness in the case. He testified, “There’s no price Microsoft could pay to have Bing be the default.” If this ends up with Google just not having to pay Apple but still being the default, have you accomplished anything?

First and foremost, what we accomplish in bringing in antitrust cases is to make sure that there’s accountability under the law. And no company, no matter how large, how significant, is above the law. So, a legal finding that a company is a monopolist and broke the law by illegally obtaining its monopoly power is a significant step forward. This is the first significant monopolization victory for the United States government in almost 25 years, the last being US v. Microsoft, so in and of itself, the accountability is significant.

Second, we want to make sure that remedies in any case, whether it’s this one or any other, are meaningful and meet the markets where they are today, not where they were 15 years ago. What is necessary to pry open competition in a market that’s been monopolized for many, many years is an important question that courts will have to grapple with at the remedial phase of any case, including this one.

But what we’ve learned from prior cases, including US v. Microsoft, is that remedies need to be forward-looking, especially in the tech market. They need to focus on the incoming inflection points. We are in a world, for example, where AI is among the most significant inflection points the technology industry has confronted in a very long time, and that has the opportunity to usher in new business models and new competitive threats. What we’ve learned from history is that incumbents often with monopoly power take steps to keep those competitive threats from realizing their full competitive potential. So, remedies in any case, especially in technology cases, must recognize this phenomenon and must be sufficiently effective and forward-looking in nature.

One of the reasons why this opinion is so thorough is that it explains that it’s not just about a contract. It’s not just a restrictive term in an agreement. It’s about all of the elements that go into making a technology product, whether it’s data, whether it’s revenue from advertising, or whether it’s the volume of click data and the ability to learn by doing. All of these are important elements and aspects of the case, and any remedy from our perspective in any of our cases, whether it’s this one or any other, has to recognize the facts as they exist. Going back to your point about being practical, we have to start with the pragmatic. How does the market work, and what does it take for competition to present itself?

It’s not just a symbolic victory, right? It’s not just accountability. It’s about the remedy. That’s what you’re saying. When are we going to see the remedies phase begin, and how long do you think it’s going to take?

We defer to the court and its process. The court has — and this is public — has ordered a status conference in September, and we look forward to appearing before the court and taking its guidance on the next steps.

In terms of antitrust cases generally, some courts will order remedies at the time of a ruling. This court and many others make the decision to bifurcate liability and remedies.

US v. Microsoft is a good example. There was a separate remedies proceeding, almost like a remedies trial in that case, which ultimately resulted in a negotiated resolution between the United States and Microsoft and then a proceeding to assess whether that was in the public interest. So, we have some historical precedents that we can look at to understand how to go about formulating remedies and how to go about a process for litigating that, but ultimately, that comes from the guidance of the court, and we look forward to taking that guidance in this case and any other.

You’ve made several references to the Microsoft case from the late ’90s, early 2000s. The decision itself makes tons of references to the Microsoft case. Like you said, that case ended with a very drawn-out settlement process, ultimately some oversight of Microsoft’s behavior. Do you think that was a good outcome?

I think the court in that case observed that it was an excellent outcome. And I think we’ve made the observation in some of our other filings and cases that platforms of today often give rise to the disruptive technologies of tomorrow.

So, if you think about microprocessors created in Bell Labs giving rise to IBM, which gave rise to Windows, which gave rise to browsers, which gave rise to Google, which gave rise to the technologies that have been built on and founded on the internet, one platform often is the springboard for the next. I think the remedy in the Microsoft case, there are people who have observed that it helped open up and preserve at least the opportunity for those new disruptive technologies to emerge. And I think the antitrust laws exist to make sure there’s a fighting chance for that to happen.

One thing you and I have talked about before — and so many antitrust people have been discussing for a while — is that the EU has pursued really aggressive measures against Google for a decade or more to introduce competition in browsers, to introduce competition in search. They’ve mandated browser ballots into the product design of various platforms, and none of it has worked. Google’s market share remains untouched. What have you learned from that process?

We have an excellent relationship with our colleagues abroad in Europe. The international stage has been dealing with technology firms that have dominant power now for a couple of decades. So, we all watch what the other is doing to make sure that we can learn from it, but we have to enforce the laws that we have here, and we have to enforce the laws based on the interest of our domestic population, and that’s what we’ve done here.

I think we come from a world where antitrust is sort of ingrained in the way we do business. Antitrust laws were written in 1890, and they were written to codify a principle that some argue goes back to the Tea Party, which is freedom from the tyranny of monopoly power and corporate oversight. These are concepts that are embedded in our essence.

Right. I’m saying a concept that is embedded in the essence of Windows in Europe is that when you open it up, it asks you what search engine you’d like to use, and everybody picks Google. At some point, you’re going to have to show up in front of a court and say, “These are the remedies the United States government would like.” Are you going to say search engine ballots? They haven’t worked.

I think what you could probably discern from this conversation is I’m definitely trying to avoid your question and say that I really do need to defer to the process in this particular case to play out. We’ll speak in our filings and before the court directly in terms of what we believe the appropriate remedy would be in this particular case.

What I can say is, more broadly, as I indicated before, remedies have to be meaningful. They have to work in the context of where the market is today and where it’s going tomorrow. In a technology market where the conduct is not just a contractual provision, but it’s the impact of contractual provisions, the cumulative impact of contractual provisions against the backdrop of massive feedback, network effects, and data, and the need for compute and servers, all of that has to be relevant to understanding the proper path forward.

The other part of the decision here is about search text ads. One of the things the court found in its ruling was that Google had been quietly raising prices on search ads in a monopolistic way. They hid it as noise in the auction process, and they slowly raised the prices. That is potentially billions of dollars in ad spend. Are you going to try to get that back?

Again, I am going to try to be really cool here and avoid your direct question. So, I’ll leave it to our filings to speak for what we’re going to ask for here.

Do you think there might be a private cause of action there?

I don’t know. That’s up to private parties. Accountability is really important in making sure, again, that the remedies actually pry open competition and lead to the next generation of technologies. And you talked about advertising. Well, very often, advertising is just like any other market. Some markets, you have prices that are put on a product with a stamp or a tag, and other markets, you have auctions and everything in between. And again, starting with the realities of how products are bought and sold and then making sure we understand what kinds of competitive pressure can come into play in the context of an ad auction market — that is something we understand pretty well, and we’ll make sure that we get right.

You brought up the idea that whatever remedies you seek have to make the next turn of technology innovation more competitive, and you mentioned AI when you were talking about that. Obviously, AI search is on the horizon. SearchGPT is out there. Google is obviously working to bring AI into search. Google’s a little bit afraid of these AI products, right? They have reacted to them very aggressively. Is that not a sign of competition already existing?

Well, it’s like I mentioned before. Often, when the new disruptive threats come in, that’s when we need the antitrust laws the most because they prevent the incumbents from thwarting the emergence of those competitive threats in order to fend off the sea change.

If you think back to US v.Microsoft, it came right around the time of what’s referred to in that case as “the internet tidal wave” where people were popping open browsers, and instead of running applications on their operating system, they were going out into the wild of the internet and running them on websites, and eventually those became apps.

So, those kinds of inflection points can be very exciting, and they can usher in new and transformative technologies. But if a company has monopoly power, and they’re the incumbent, then there’s a strong incentive either to keep those new technologies from emerging or developing or thriving or to drive them in a direction that feeds the monopoly moat rather than prying open brand-new frontiers. So, we want to make sure, again, that we’re not picking winners and losers, that we’re not mandating outcomes, but simply that we are allowing the natural competitive forces of innovation to emerge and thrive.

There’s a lot of general froth about antitrust and Google in particular in the tech world right now, whether regulating merger and acquisition activity makes it too hard for startups to exit. In a similar vein, they’re saying, “Well, if you don’t allow M&A, we’re just going to come up with other ideas” to exit.

AI is extraordinarily capital-intensive, extraordinarily talent-intensive. We’re seeing some other approaches to acquisition in the tech space. So, I’m just going to ask you a hypothetical: if a company doesn’t buy a company or acquire its shares, but it commits the same money it would to paying all of the investors and employees for their shares, is that still an acquisition in your mind?

Thank you for presenting that as a hypothetical.

I guess I would say, as an antitrust enforcer, substance over form. So, if it looks like a duck and quacks like a duck, then it’s not an elephant. And I think we have to, again, be pragmatic and practical about it. So, if it’s an acquisition in all but name, then that’s what we’re going to call it, and that’s how we’re going to treat it.

We did that in a case we brought involving American Airlines and JetBlue, where they entered into an alliance. We essentially told the court it was an agreement that essentially merged the two companies for the purposes of air travel in this certain region, and we treated it as such against the appropriate legal backdrop. So, we’re not going to let form triumph substance when it comes to anticompetitive behavior.

I will say, at the same time, though, our goal is not to get in the way of legitimate business. We see thousands of mergers every year. I think less than 3 percent, if not even lower than that, actually get a look — a real in-depth look — and even a smaller percentage, a sliver, get challenged. There’s tons of M&A that’s occurring that never sees the inside of our building, that never receives a phone call from the Antitrust Division of the Department of Justice because there are no competitive problems. It’s just a small sliver of transactions that result in strategic M&A with a firm that has significant market power or can create significant market power that might be a problem.

We want people to invest. We want companies to innovate and thrive and eventually want them to go public. I mean, companies going public and becoming the next generation of really strong, innovative entities is a great thing from our perspective. I know there’s a lot of consternation in the tech center about the cost of going public, especially for smaller micro-cap companies, and I think those are legitimate conversations. We want there to be multiple paths to success.

If the only way to succeed is through exit to a large dominant tech firm, then I think that’s a sign of a fundamental problem in the market. I think we should ask a broader question: why are we in a world where that’s the only pathway to durability?

Here’s the big question I want to wrap up the Google conversation with. It’s one that I thought about a lot as I was reading the decision. It doesn’t say this in the decision, but it feels like the decision is a reaction to this idea.

For over 10 years, Google’s response to any concerns of it acting in an anticompetitive way was to simply respond with “Competition is just a click away.” You think Google Search is acting anticompetitively against Bing or DuckDuckGo or whatever, and Google would say, “Competition is just a click away. People can just choose to use the other search engine. They pick us because we’re the best.”

I read this decision, and it is a pretty thorough deconstruction of that argument. It’s saying, “Here’s all the ways the competition is not just a click away. Here’s all the ways that consumers don’t even know that they should think about those clicks. They’re just doing what’s in front of them.”

Do you think that’s done now? That we’re going to stop making that argument? Because it feels like that has been the center of gravity in the antitrust argument about Google, in particular, for most of my career as a tech journalist.

I hope so.

I mean, I think it’s an extraordinarily unsophisticated argument, and I think this case and many of our other cases demonstrate that. The fact of the matter is: these are billion-dollar capital-intensive industries. Companies are paying tens of billions of dollars for distribution, accumulating massive petabytes of data, and engaging in machine learning.

Competition requires all of those ingredients, and it’s not easy, and we don’t want companies to shy away from making those investments or monetizing those investments. But the fact of the matter is that these industries are a lot more sophisticated than a punchline.