The U.S. Federal Trade Commission is close to handing Google and its executive officers a court order that will force them to testify in an antitrust investigation into the company’s practices, according to a report in the Wall Street Journal. The subpoenas are expected to be handed over within a matter of days. If and when that happens, it will put Google right where Microsoft was in the late 1990s — fighting to prove that its behavior as a quasi-monopoly is not anti-competitive. And the big risk for Google isn’t just that it might lose: As the case against Microsoft showed, such investigations can harm a company even if they are ultimately unsuccessful.
Google has already faced some antitrust-related investigations by the FTC, but these have been directed at specific acquisitions — such as the purchase of mobile advertising company AdMob, which was held up by the regulator until the purchase of a similar company by Apple paved the way for the deal to be approved. Google also faced antitrust concerns about its acquisition of flight-travel information company ITA, since that company provides data for a lot of other services. In the end, Google had to agree to a number of restrictions on what it could do with both the company and the data, but the deal was allowed.
The current investigation, according to the WSJ, will be different in that it “will examine fundamental issues relating to Google’s core search advertising business,” including whether the company unfairly directs users to its own services rather than those of its competitors. The European Commission has already opened a similar investigation, based on allegations by several companies that Google has harmed their businesses by favoring its own services when people search for specific keywords. Earlier this year, Microsoft filed its own complaint with the European Commission alleging that Google is being anti-competitive.
Should we be enforcing “search neutrality?”
The principle lurking behind this kind of allegation has been referred to by some as “search neutrality.” The theory is that Google is so powerful as a result of its market share in search — and searching has such a huge impact on how people interact with the web — that Google is controlling the behavior of users by showing them specific results and/or sending them to its own related properties (Picasa for photos, YouTube for videos, Google Maps for maps, and so on). The argument is that this distorts the market in the same way that “net neutrality” advocates claim telecommunications companies do (or want to).
Some Google critics — including the New York Times, in a surprising editorial written last year — have argued that the company should be forced to reveal the algorithms it uses to rank search results, since some companies claim they are being unfairly harmed by it. But others, including New York law professor James Grimmelmann, say the whole idea of “search neutrality” is absurd, since search engines by their nature try to determine what the best results are, and that this necessarily requires some kind of editorial decision-making.
Search Engine Land editor Danny Sullivan, meanwhile, has argued that Google should be free to point users toward its own properties, and that those who don’t like the results they get from Google are free to use Microsoft’s Bing or Yahoo (which is now powered by Bing) instead. Sullivan says that after covering the search market for 15 years, he has seen no convincing evidence that Google distorts the market in its own favor or harms competitors — and notes that even large players such as Yahoo have not made such claims against Google (at least not publicly).
Who is harmed?
Google draws a lot of fire for having a monopoly or virtual monopoly on search and search advertising, since it is estimated to control about two-thirds of the market for search. But simply having a dominant market share isn’t against the law — what is illegal under antitrust legislation is either obtaining this position through anti-competitive means or using it in anti-competitive ways against other companies (Microsoft, for example, was accused of “tied selling,” by requiring computer makers to install its browser along with Windows).
It’s also important to note that inconveniencing competitors isn’t the benchmark the courts look at when it comes to making an antitrust case: the real test is whether consumers are harmed in some way. Has Google somehow caused consumers to pay more for something as a result of its behavior? That would be a hard case to make, since Google typically makes things less costly or even free. Has consumer choice been reduced somehow? That’s another test a court would look at.
The long-term impact of an antitrust case
Regardless of the merits of the case, or even the eventual outcome, one of the risks for Google is that having to deal with the government inquiry could slow the company’s progress down or even cripple it. Even though Microsoft arguably won its antitrust battle (it agreed to a settlement in 2001 but didn’t have to change its behavior much), some believe the pressure and stress of that war altered the company’s fortunes forever — not just by tying it up in red tape but by making it more timid, and less likely to do something competitive, for fear of attracting the government’s attention.
What happens to Google if it no longer feels that it can make whatever acquisitions it wants to, or release whatever kinds of free services it comes up with, for fear that this will draw more fire from the government? And what happens to the share price if its legendary growth starts to slow?
Meanwhile, a report earlier this year from the Technology Policy Institute found that such government antitrust investigations rarely accomplish what they set out to do — despite the years of legal effort that were poured into antitrust investigations into Microsoft, IBM and AT&T, the report found that competition came to those markets not as a result of government regulation but because of external factors — including technological changes — that the government could never have predicted.
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