When cross-examined on Thursday of the second week of this trial, the founder of DuckDuckGo — a rival search engine to Google — described competing with Google as a ‘quixotic exercise’. But in relation to the trial, Gabriel Weinberg is far from the only one who feels they might have a touch of Don Quixote about them; the DOJ was forced to take down the exhibits from their website this week to the dismay of journalists. This blackout is the most recent of a series of obstructions to the quest of reporters to disseminate information about the trial.
The move comes as a result of Google’s complaint in the courtroom concerning the DOJ’s posting of trial exhibits. Since the DOJ had not informed the judge of their process, they agreed on Tuesday to cease posting exhibits and remove previous exhibits from their website until they reached a consensus with the Judge.
There are two main takeaways here. Firstly, the work of journalists has become far more difficult. Even those lucky enough to be in the courtroom now must exclusively rely on written notes without any capacity to check their facts and figures. Those outside the courtroom are now cut off from the only primary sources of this case, which prompts further reliance on secondary sources. Secondly, this shift in proceedings forms part of a wider strategy on Google’s part to reduce the media footprint of this trial. For instance, much of the testimony about the importance of user behaviour to search on Wednesday happened behind closed doors which impoverishes reporting. Details of testimony from Friday are also scarce because of this same policy — cui bono?
Outside of the trial’s media-dimensions, Monday saw a series of exhibits concerning the strong ties between Google’s search engine and their advertising business. A slide deck from 2020 revealed that the first two to three results of each search comprise of advertised or sponsored content (p. 6) — on mobile devices, it is the entire first screen (p. 7). Google’s practice is clearly lucrative; another slide deck displayed the company’s advertising revenue from 2019 — $98 billion (p. 3).
An email exchange from 2016 between Jerry Dischler, head of ads and Sridhar Ramaswamy provides context to this immense scale. The DOJ’s exhibit reveals that Google executives had been strategically toggling their search algorithm, including queries from Chrome, in order to hit a ‘price target valuation’ (p. 3). That these activities verge on an abuse of market power is all-but confirmed in a separate exchange from 2019 in which Dischler weighs up Wall Street’s expectations with the user experience of their services. The evidence suggests that Google strategically changes its auction process for advertisements — a tactic internally described as a ‘launch’ — to raise prices by five percent on average. The DOJ is making the crucial legal argument that Google’s vast market share in Search is to the detriment of consumers and advertisers alike. And neither of these two parties have any meaningful course of resistance to this practice: the power of defaults retains users despite a weakening product and Google’s vast audience, sustained by their deals with Android, Apple and telecoms companies, forces advertisers to pay above a fair market rate.
Google contested the extent of their market share in Search on Tuesday. Dischler claimed that Google faces heavy competition from Meta and Amazon in terms of ads. And yet, the DOJ produced Dischler’s email from 2018 which states that Facebook’s search ads are ‘small money due to low intent’. He later stated in a 2020 email that Amazon’s growth was ‘not cannibalizing Google’. Dischler disavowed these claims in his testimony. But the DOJ’s evidence bespeaks Google’s internal acknowledgement of their dominant position in the ad market and weakens the defence’s counterarguments.
On Thursday, Weinburg, the CEO and Founder of DuckDuckGo, took the stand to give evidence about the experience of competing with Google in the Search market. As well as his reference to ‘quixotic exercise’, Weinburg explicitly drew the Court’s attention to the difficulty of disrupting Google’s default agreements, which had been the subject of intense scrutiny the week before. On the level of the individual user, he contrasted the difficulty of trying to establish DuckDuckGo as their default browser with the ease of staying with Google. He also voiced the macroscopic concern that technology providers were unwilling to set DuckDuckGo as a default because of their existing deals with Google. In effect, Google had closed out the competition.
See our summary of Week One’s proceedings here.