Quick Read: Google Cares About Google's Privacy

From destroying documents to trying to stop a public feed of the antitrust trial, Google knows the value of its own privacy.

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The Google antitrust trial over its search monopoly starts on Tuesday, and will continue for two months. During that time, BIG will be covering the ins and outs intensely. There are legal, political, policy, technological, and communications angles, but simply put, this trial is the most important antitrust case in a generation and will shape the future in ways we cannot yet imagine.

I’ll have an exciting announcement about our plans to cover the trial in the next few days, but for now, I’m going to do a quick piece on how the search giant is trying to shape public perceptions of the trial by blocking public access to the court.

First, an announcement. Aside from doing this newsletter, I work at organization called the American Economic Liberties Project, which is a non-profit think tank focused on fairness and liberty in commerce. AELP does legal and policy work in a bunch of different areas, such as trade, airline regulation, health care and antitrust. (As an example, the organization actually intervened in the Google trial last Friday, which I’ll tell you about below.) AELP is hiring, so if you want to do anti-monopoly work, please apply. We have an opening for a senior communications role, a junior communications role, and an operations role. If you want to learn about governing and commerce, and distrust monopolies, check out the job descriptions and see if they are right for you.

The Trial Is the Remedy

Gary Reback, the lawyer who engineered the antitrust case against Microsoft in the 1990s, argues about the value of a public trial. “I like to say to people,” he said, “that the trial is the remedy. Because once you understand what’s going on, that automatically stops the other guy from doing it.” And indeed, in the early 2000s, Microsoft executives had the opportunity to crush Google in the crib by blocking the search firm’s access to Internet Explorer, and they discussed it internally. But they decided not to, because of the scrutiny from the trial, which revealed they had crushed their rival Netscape, using a variety of coercive tactics.

It seems that Google has learned something about publicity because some of its key leaders were baptized by fire in the Microsoft case. Take Google’s chief lawyer, Kent Walker, who got a puff profile in the New York Times. Walker was Netscape’s lawyer in the late 1990s, so he saw how to take down a monopolist. You do it not with data, but with publicity and lobbying.

Microsoft was hostile to Washington D.C. in the 1990s, and so Bill Gates came off as a spiteful weird nerd who hated Congress and the government. Google, by contrast, is every politician’s best friend, bestowing awards on newly elected officials, throwing the best parties after the White House Correspondent’s Dinner or at the Congressional Black Caucus Foundation retreat. It’s hard to find a law firm, think tank, or pollster to take on Google, since they all, in one form or another, work for the company. And Google will likely have a war room, staffed with dozens of people, solely dedicated to talking to Wall Street analysts and reporters about this case.

You can also shed light by exposing bad comments where an executive is caught with his hand in the cookie jar. In Microsoft’s case, that was when an executive was quoted as saying they sought to cut off Netscape’s “air supply.” This is a harder problem to address, because no matter how much you try, and Google has internal rules against saying things like “market share” or “antitrust,” someone will always screw up. So Google has a two-part strategy. First, hide and destroy evidence so there aren’t those bad moments.

Google regularly hides documents they owed to the court, or just deletes what their lawyers knew they should have kept.

The firm got caught doing it in this coming antitrust case as well, though Judge Mehta hasn’t yet decided to sanction the firm or its lawyers. The effect is that it’ll be much harder to tell the morality story that is necessary, because the evidence of bad intent or dishonest won’t be there.

The other strategy Google seems to pursue as policy is to do as much as possible to block information from coming out of the courtroom. Many pre-trial hearings involved Google trying to stop exhibits or evidence from becoming public, or trying to keep as much under seal as possible. But now, the firm seeks to restrict public access to the trial itself, in the form of opposing a Zoom feed or audio feed that normal people outside of D.C. can listen to. Court cases are supposed to be public, and some courts allow the public to listen to their proceedings online. The Microsoft-Activision merger trial and the American Airlines-JetBlue trial were both accessible by Zoom, and there was a lively set of discussions on social media as a result.

Judge Mehta, however, was initially not interested in having a public feed of the trial, generally being somewhat skeptical there’s much public interest and wondering if an audio feed violated court rules against broadcasting the trial. Katie Van Dyk, a lawyer for the American Economic Liberties Project, filed a motion for a public feed, and argued at a pre-trial hearing on Friday for it. Van Dyk noted that a Zoom line has been used in different antitrust trials, and that broadcast refers to radio or TV, not a capped Zoom room size. Government lawyers were favorable to public access, so it would seem resolved.

What’s interesting is that Google opposed it, claiming that an online audio feed would allow confidential information to become public. This argument makes no sense, as the trial is already public, and any confidential information put out on audio would be put out publicly in the courtroom itself. The actual point here is to exclude everyone but those who are physically in the courtroom, which is to say, people who can afford to be in D.C. Google just wants less attention.

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Opposing public access in antitrust trials is a pattern for Google. Earlier this summer, the corporation opposed having either video or audio in another trial on its app store practices, arguing that doing so would “risk disclosure” of “sensitive competitive evidence.” This is of course nonsense, but it’s par for the course.

Walker understands that the trial is the remedy, and is as aggressive as possible in making sure there’s very little that the public gets to see. Antitrust cases are about credibility, aka who the judge believes. Judge Mehta is flexibly minded, and he was willing to listen to arguments about having a public feed. But I worry that Mehta continues to assume that all parties involved in the trial operate in good faith, despite the evidence that Google is not doing so.

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cheers,

Matt Stoller