What’s happening in the Google antitrust trial? It’s kind of a black box.
Sep 26, 2023

What’s happening in the Google antitrust trial? It’s kind of a black box.

Leah Nylen of Bloomberg says much of the testimony and many of the exhibits have been removed from public view to protect sensitive information. But that could keep us from having a full understanding of the outcome.

We’re going on Week 3 of Google’s high-stakes trial over allegations that it bought its way to dominance in internet search. The Department of Justice and several states allege that the tech giant has maintained a lucrative monopoly through exclusive contracts with browser companies and phone makers like Apple and Samsung.

Google has countered that it’s dominant in search because it offers the best product.

Covering this trial has been a complicated task. Part of the challenge is that Google and other companies involved have moved to shield documents from public view. That applies to some testimony too. Leah Nylen, an antitrust reporter for Bloomberg who’s been present throughout, told Marketplace’s Lily Jamali about the trade-offs involved in these confidentiality decisions. The following is an edited transcript of their conversation.

Leah Nylen: In an antitrust case, the company’s conduct is the alleged violation, and so oftentimes the government will seek to introduce things like emails, things like corporate presentations or corporate filings. But this one, you know, Google is very concerned about its contracts with other folks. And the third parties are also somewhat concerned about, you know, their trade secrets or corporate information being revealed publicly.

Lily Jamali: Third parties like Apple, for example?

Nylen: Yeah. And because they aren’t actually involved in the case — they’re being called as witnesses — the judge has been pretty sympathetic to their concerns about some of their corporate information being shared. So it’s very common in any antitrust case for there to be a lot of redactions on documents, so like exact numbers or things like that might be blacked out because it’s sort of the conduct overall, maybe not the specific financial ramifications, that are supposed to be at issue.

Jamali: Yeah, and it sounds like the judge in this case, Amit Mehta, has given the Department of Justice, the lawyers there, a little bit of a hard time about posting exhibits from the trial online without telling him first. These are public documents. Why do you think he raised that issue?

Nylen: So the judge has pointed out that once an exhibit, a document, gets offered in court, it becomes a public record. And the Justice Department, as they do in any case really, had been making those available to reporters and the public after they were introduced in court. And the judge found out about that last Tuesday, and he said he doesn’t necessarily have a problem with them releasing this information, but he should have been told about it in advance. And because he raised his concern, the Justice Department removed all of the exhibits that they had already posted, which is a pretty extreme remedy. I have never seen it in any other case before, I’ll just put it that way. And I’ve been doing this for 12 years.

Jamali: And you became a character in this story when you asked for full access to those documents. Where do things stand on your request?

Nylen: Yes, so the Justice Department and Google are in negotiations about how they would release these documents. You know, they both say that they’re not opposed to releasing them. But they want to make sure that there is a process in place for how they get released and to ensure that they have proper redactions. Google had raised an issue about the documents that the Justice Department had already posted because they didn’t, for example, black out people’s email addresses. And so they were like, “This is going on the internet, so we should probably give our employees a little bit of privacy and black out their email addresses or phone numbers at the bottom of emails.” So they’re in discussions over that. They still haven’t really reached a resolution. They’ve been discussing it since last week, so we’re really hoping that today the judge makes a decision on this.

Jamali: What was it like raising your hand and saying, “Hey, we want to see these documents. We want them posted publicly so we have full access to them”? What was that experience like for you?

Nylen: It was a little weird. You know, as a journalist, your job is to report on what’s going on, not necessarily be an actor in it. But I have always been taught since I was a young reporter that when courts are acting to seal things, you have a right as a member of the public to object to that. When I was younger, I used to have this little card that I kept in my wallet with, like, the phrase that you’re supposed to ask. And so I stood up and asked that we have a right to have a lawyer come in and discuss access to these publicly filed exhibits. The judge said he didn’t think that was necessary, that they were working on it. So Bloomberg does have lawyers, but we haven’t officially been involved up until this point because we’re sort of waiting to see what the Justice Department and Google propose before we take any additional steps.

Jamali: The other thing I wanted to flag was, it sounds like reporters have been shut out of hearing some key testimony in the case as well.

Nylen: Yes, that’s definitely true. So in any antitrust case, as I mentioned, because there is a lot of confidential information, it’s not that unusual for there to be some sealed testimony. For example, you might have somebody testify generally about what their job is within a company. And then if they’re getting into specific information about, like, Google’s finances, that would be held behind closed doors. So there’s been a lot of sealed testimony. So last week, there was actually more hours of sealed testimony than there was open. And as somebody who gets to go every day and trying to present this to the public, that makes it a little bit hard because you don’t know how much of the testimony is going to be public. We just get to sit in the hall. They don’t even necessarily tell you how long you’re going to be sitting there in the hall. So you’re just waiting outside the door for them to come and let you back in.

Jamali: Well, this case overall has drawn a lot of comparisons to the last major landmark monopoly case brought by the DOJ 20 years ago against Microsoft. Is it your impression that this case has been less transparent than that one was?

Nylen: I think that’s probably fair. The Microsoft case was a really blockbuster moment for antitrust in the late 1990s. There were media outlets there every day, they aired the deposition, which is this legal interview of [then-Microsoft Chair] Bill Gates, publicly. And we had been doing some estimates — there was almost more coverage of the Microsoft case than there was of the [then-President Bill] Clinton impeachment trial.

Jamali: Wow, that is really saying something.

Nylen: Yeah. So there were just like dozens of reporters who were there every day. Microsoft would hold a press conference outside the court every day, even on days in which there might have been sealed testimony to sort of lay out why it thought that day’s testimony was good for them. So there was definitely a lot of openness involved in that case and a lot of public interest. There’s even, like, a display in the foyer of this courthouse about that case and how it’s been important to the development of technology. So it’s sort of funny, the differences between the late 1990s and now.

Jamali: Why does it matter for these documents and for this testimony to be within the public’s view?

Nylen: The entire court system is part of our government. And judge [Mehta] is going to make a decision about whether Google violated the law. And it’s going to be his decision very much based on the facts in the case. So if the public can’t actually know what the facts are in the case, it’s really hard for anyone to make their own judgment about whether the judge is making the right call or not.

Jamali: How do you think this case could impact how other tech companies think about their growth and their expansion? Regardless of how things go, necessarily, but the fact that you’re having the biggest names in tech, some of them, are having to show up and give testimony here. Do you think that they’re going to be taking this stuff back to Silicon Valley and Seattle and maybe approaching their work differently? Or is that a little too lofty an expectation?

Nylen: Well, I think we saw a little bit of this on Friday. The only thing that John Giannandrea, who is the former Google executive now at Apple, said publicly was that just last week, Apple made a change to the features available on the iPhone to make it easier for consumers to switch which search engine they use. So there has been a change already sort of in the marketplace because of this lawsuit. And then, more broadly speaking, this is the first of several expected cases against some of the Silicon Valley companies. There are a number of other ones against Google that are waiting to go to trial later this year and next year. There is one that the Federal Trade Commission brought against Facebook that is still awaiting trial. And then there are investigations into Amazon.com and Apple that the antitrust agencies have had ongoing since 2019 that we’re expecting some kind of resolution to in the near future. So just legally speaking, this case is the first in what are expected to be several over the next year.

More on this

You can keep up with Leah Nylen’s reporting on the case as it unfolds. She’s posting about it on X (or Twitter, if you prefer). Here is also a live blog from The Verge with ongoing analysis on developments in United States v. Google.

Nylen co-wrote a recent article on Bloomberg about Google’s efforts to keep documents shielded from public view. The piece includes exhibits that were downloaded before they were removed from the public case record.

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