What to expect when Google faces the DOJ in the first major tech monopoly trial in decades
Google CEO, Sundar Pichai (: and Jonathan Kanter, assistant attorney general of antitrust for the US Department of Justice (R).
Getty Images
The biggest tech monopoly trial since the Department of Justice challenged Microsoft more than 20 years ago is set to begin Tuesday, kicking off a new chapter of anti-monopoly enforcement in the U.S.
Over the next few months, the DOJ and a collection of state attorneys general will make their case to a D.C. District Court judge for why Google has allegedly violated anti-monopoly law through exclusive agreements with mobile phone manufacturers and browser makers to make its search engine the default for consumers. Google, in turn, will seek to tell the judge why its behavior is not anti-competitive and instead provides a better experience for consumers.
While the trial marks the tech sector’s first major anti-monopoly proceeding in decades, Google is squarely in the middle of its antitrust battles. It’s already faced major fines over its competitive practices in Europe, and months after it wraps arguments in the search trial, it’s set to face a second challenge from the DOJ in the Eastern District of Virginia over its advertising technology business.
At stake in this trial is the chance for the DOJ to prove it can bring a successful anti-monopoly case in the modern digital age. The DOJ will likely strive to show that enforcement of the antitrust laws, not the absence of them, is what can unlock innovation, just as many believe its victory in the Microsoft case paved the way for a generation of companies including Google to thrive in a more open internet ecosystem.
For Google, it’s fighting to preserve a long-standing business practice that it sees as an important way to make its search products accessible to consumers, which it says creates the best experience for them.
Here’s what to expect as the trial begins on Tuesday.
What the trial is about
A key focus of the trial will be on two kinds of agreements Google has made with other companies. One type of agreement relates to the payments Google makes to browser makers like Apple to be the default search engine on the iPhone’s Safari browser and other devices. The other type is Google’s contracts with phone manufacturers that run Google’s Android operating system, which require them to preload certain Google apps.
The government argues that these arrangements locked up important distribution channels for search, creating overwhelming barriers to entry for rival search engines to compete with. Because of Google’s alleged dominant position in the market, the government contends that these moves violated antitrust law by illegally maintaining a monopoly.
The states will also argue an additional claim: that Google failed to make its popular search advertising tool, Search Ads 360 (SA360), sufficiently interoperable with Microsoft’s Bing. Instead, they allege in the complaint, Google “favors advertising on its own platform and steers advertiser spending towards itself by artificially denying advertisers the opportunity to evaluate the options that would serve those advertisers best.”
Colorado Attorney General Phil Weiser, who has led the coalition of states, told CNBC in an interview that their case and the DOJ’s “are really hand-in-glove.”
“The cases have very compatible theories, and the core message from both is that Google’s monopoly power has been abused, harming competition and hurting consumers,” Weiser said.
Colorado attorney general Phil Weiser speaks during a press conference announcing an indictment of the three Aurora police officers and two Aurora fire paramedics in the death of Elijah McClain on Wednesday, September 1, 2021.
Aaron Ontiveroz | MediaNews Group | The Denver Post via Getty Images
One argument that won’t make it to trial are the states’ allegations that Google suppressed vertical search providers, or search services that are focused on a specific topic, such as Yelp and Tripadvisor. The judge did not allow that claim to move forward. Still, antitrust experts interviewed for this article said that in some ways, the omission could actually help the government deliver a more straightforward and streamlined argument by dedicating more time to other theories.
The government is likely to argue that Google’s behavior has stifled innovation that would otherwise benefit consumers. That could be because the high barriers to entry in the market could discourage rivals and because the lack of competition could lessen Google’s own incentive to innovate.
But Google has maintained that its actions have legitimate business purposes and are made to enhance consumer experience with its products.
Points of conflict
One likely area of disagreement will be how the government defines the market that Google has allegedly monopolized. While Google did not contest the definition of the general search market in its motion to dismiss the case, it could still do so in its trial arguments.
While the government defines the general search market as including direct Google rivals like Bing and DuckDuckGo, Google has alluded to other tools that consumers commonly use to search online. For example, in a blog post previewing its defense, Google’s president of global affairs, Kent Walker, pointed to an Insider Intelligence report that found 60% of U.S. product searches start on Amazon. Walker wrote that the abundance of places where consumers can use online search shows that Google hasn’t foreclosed competition.
Still, much of the trial is likely to focus on whether Google’s alleged exclusionary contracts can be considered bad acts used to further its monopoly. That means the behavior doesn’t have a legitimate business purpose “besides aggrandizing or keeping your market power,” according to Rebecca Haw Allensworth, an antitrust professor at Vanderbilt Law School.
“I think the judge is probably inclined to find that Google has substantial monopoly power,” said Bill Kovacic, who teaches antitrust at George Washington University Law School and is a former FTC chairman. “So the attention is going to be focused on the behavior. And one of Google’s principal themes will be that everything we do gives the user a better experience. And that the net effect of each practice is to make the user better off than they would be otherwise.”
One important part of the case will be examining the payments Google makes to Apple to secure its place as the iPhone’s default search engine in its Safari browser. On the one hand, the government may argue that the billions of dollars Google is estimated to spend on that position shows just how valuable it sees that placement and the level of sacrifice Google is willing to take on to be the default, according to Allensworth.
Google CEO Sundar Pichai (L) and Apple CEO Tim Cook (R) listen as U.S. President Joe Biden speaks during a roundtable with American and Indian business leaders in the East Room of the White House on June 23, 2023 in Washington, DC.
Anna Moneymaker | Getty Images
On the other hand, Allensworth added, Google might argue that prominent placement in Apple’s browser means more eyeballs for its own advertisers, and ultimately more revenue, which could be a legitimate business justification.
Allensworth said she expects the government to bring in experts that attempt to argue that the payments for default placement “economically don’t make sense,” beyond an effort to cut out rivals.
One additional element that will be discussed is Google’s alleged destruction of evidence once it reasonably expected litigation. The government alleged that Google failed to preserve chat messages between employees that should have been under legal hold and prevented from auto-deleting.
“That type of destruction and failure to preserve evidence is really troubling,” Weiser said. “And the judge has said that’s something he’s willing to consider in this case. And we just want to underscore that as the judge looks at this case, we didn’t have full access to the evidence because of the conduct of Google.”
Google has said that company officials “strongly refute the DOJ’s claims.”
“Our teams have conscientiously worked for years to respond to inquiries and litigation,” a spokesperson said in a statement earlier this year. “In fact, we have produced over 4 million documents in this case alone, and millions more to regulators around the world.”
What to expect on Tuesday
The first day of the trial will set up the arguments for what could take as long as 10 weeks. Each party will give its opening statements before the DOJ begins presenting its case-in-chief. That means the government will call on both expert and industry witnesses to help make its case.
After the DOJ concludes its main presentation, the states will have their turn, followed by Google. Afterward, the plaintiffs will likely get a chance to rebut Google’s arguments.
Antitrust trials are a long process, and even if Google is found liable at this stage, there could be another separate proceeding to determine the best solution for resolving the concerns.
In the next few weeks, one of the most interesting things to watch for will be who is called to testify. In addition to experts like economists, expect to see Google executives called to the stand, potentially including CEO Sundar Pichai. The court will likely also hear testimony from third parties referenced in the case, like Mozilla and Apple or rivals like Microsoft or DuckDuckGo.
What’s at stake
The case’s outcome will be a significant statement on the status of antitrust law in the U.S. and how it should be applied to dominant tech firms. While the court will consider specific remedies only if Google is found liable for the allegations at this stage, a favorable ruling for the government could ultimately result in restrictions on Google’s business practices or even the break up of parts of its business.
Google would view such a ruling as ultimately harmful for consumers.
“A ruling that says your products are too good or too successful, you can no longer pay to promote them,” would be out of step with American law and “not good for the ecosystem and not good for consumers,” according to Google’s Walker.
But supporters of the government’s case believe consumers will be subject to a deteriorating search experience if the court rejects its arguments.
“If Google is allowed to maintain its monopoly through illegal default search agreements while hampering competition, what that means is Google maintains its monopoly with a worse product,” said Lee Hepner, legal counsel at the American Economic Liberties Project, which advocates for more enforcement of antitrust laws in markets including tech.
The outcome will also be an important signal of the ability of the government to bring successful tech antitrust cases in the future, and whether current law can sufficiently account for the nuances of digital markets.
For the government, winning this trial would be a significant victory, strengthening the DOJ’s currently mixed record in court under antitrust chief Jonathan Kanter and signaling it can tell a compelling story about technical digital markets. A loss would be a blow to those efforts, but would likely be used as fodder in Congress to push for new antitrust laws.
For the government, winning the trial may also be seen as a chance to open the digital ecosystem for the next generation of tech businesses. Many credit the Microsoft case with that effect, and this trial comes as artificial intelligence ushers in a new wave of technology and likely many new companies.
But Matt Schruers, president of the Computer & Communications Industry Association, of which Google is a member, sees the rise of AI as complicating the government’s arguments. Google is one of the leaders in generative AI with its chatbot Bard, though OpenAI released ChatGPT first.
“That argument could not come at a more awkward time for the government, given the amazing innovations that we’ve seen come to market by companies that are not Google,” Schruers said. “We’re in the midst of an overwhelming sea change in technology, and the government has to say, ‘These contracts are holding technological innovation back.'”
WATCH: Google faces fast and furious pace of lawsuits as antitrust scrutiny intensifies
Jakub Porzycki | Nurphoto | Getty Images
Mark Zuckerberg’s announcement this week that Meta would pivot its moderation policies to allow more “free expression” was widely viewed as the company’s latest effort to appease President-elect Donald Trump.
More than any of its Silicon Valley peers, Meta has taken numerous public steps to make amends with Trump since his election victory in November.
That follows a highly contentious four years between the two during Trump’s first term in office, which ended with Facebook — similar to other social media companies — banning Trump from its platform.
As recently as March, Trump was using his preferred nickname of “Zuckerschmuck” when talking about Meta’s CEO and declaring that Facebook was an “enemy of the people.”
With Meta now positioning itself to be a key player in artificial intelligence, Zuckerberg recognizes the need for White House support as his company builds data centers and pursues policies that will allow it to fulfill its lofty ambitions, according to people familiar with the company’s plans who asked not to be named because they weren’t authorized to speak on the matter.
“Even though Facebook is as powerful as it is, it still had to bend the knee to Trump,” said Brian Boland, a former Facebook vice president, who left the company in 2020.
Meta declined to comment for this article.
In Tuesday’s announcement, Zuckerberg said Meta will end third-party fact-checking, remove restrictions on topics such as immigration and gender identity and bring political content back to users’ feeds. Zuckerberg pitched the sweeping policy changes as key to stabilizing Meta’s content-moderation apparatus, which he said had “reached a point where it’s just too many mistakes and too much censorship.”
The policy change was the latest strategic shift Meta has taken to buddy up with Trump and Republicans since Election Day.
A day earlier, Meta announced that UFC CEO Dana White, a longtime Trump friend, is joining the company’s board.
And last week, Meta announced that it was replacing Nick Clegg, its president of global affairs, with Joel Kaplan, who had been the company’s policy vice president. Clegg previously had a career in British politics with the Liberal Democrats party, including as a deputy prime minister, while Kaplan was a White House deputy chief of staff under former President George W. Bush.
Kaplan, who joined Meta in 2011 when it was still known as Facebook, has longstanding ties to the Republican Party and once worked as a law clerk for the late conservative Supreme Court Justice Antonin Scalia. In December, Kaplan posted photos on Facebook of himself with Vice President-elect JD Vance and Trump during their visit to the New York Stock Exchange.
Joel Kaplan, Facebook’s vice president of global policy, on April 17, 2018.
Niall Carson | PA Images | Getty Images
Many Meta employees criticized the policy change internally, with some saying the company is absolving itself of its responsibility to create a safe platform. Current and former employees also expressed concern that marginalized communities could face more online abuse due to the new policy, which is set to take effect over the coming weeks.
Despite the backlash from employees, people familiar with the company’s thinking said Meta is more willing to make these kinds of moves after laying off 21,000 employees, or nearly a quarter of its workforce, in 2022 and 2023.
Those cuts affected much of Meta’s civic integrity and trust and safety teams. The civic integrity group was the closest thing the company had to a white-collar union, with members willing to push back against certain policy decisions, former employees said. Since the job cuts, Zuckerberg faces less friction when making broad policy changes, the people said.
Zuckerberg’s overtures to Trump began in the months leading up to the election.
Following the first assassination attempt on Trump in July, Zuckerberg called the photo of Trump raising his fist with blood running down his face “one of the most badass things I’ve ever seen in my life.”
A month later, Zuckerberg penned a letter to the House Judiciary Committee alleging that the Biden administration had pressured Meta’s teams to censor certain Covid-19 content.
“I believe the government pressure was wrong, and I regret that we were not more outspoken about it,” he wrote.
After Trump’s presidential victory, Zuckerberg joined several other technology executives who visited the president-elect’s Mar-a-Lago resort in Florida. Meta also donated $1 million to Trump’s inaugural fund.
On Friday, Meta revealed to its workforce in a memo obtained by CNBC that it intends to shutter several internal programs related to diversity and inclusion in its hiring process, representing another Trump-friendly move.
The previous day, some details of the company’s new relaxed content-moderation guidelines were published by the news site The Intercept, showing the kind of offensive rhetoric that Meta’s new policy would now allow, including statements such as “Migrants are no better than vomit” and “I bet Jorge’s the one who stole my backpack after track practice today. Immigrants are all thieves.”
Recalibrating for Trump
Zuckerberg, who has been dragged to Washington eight times to testify before congressional committees during the last two administrations, wants to be perceived as someone who can work with Trump and the Republican Party, people familiar with the matter said.
Though Meta’s content-policy updates caught many of its employees and fact-checking partners by surprise, a small group of executives were formulating the plans in the aftermath of the U.S. election results. By New Year’s Day, leadership began planning the public announcements of its policy change, the people said.
Meta typically undergoes major “recalibrations” after prominent U.S. elections, said Katie Harbath, a former Facebook policy director and CEO of tech consulting firm Anchor Change. When the country undergoes a change in power, Meta adjusts its policies to best suit its business and reputational needs based on the political landscape, Harbath said.
“In 2028, they’ll recalibrate again,” she said.
After the 2016 election and Trump’s first victory, for example, Zuckerberg toured the U.S. to meet people in states he hadn’t previously visited. He published a 6,000-word manifesto emphasizing the need for Facebook to build more community.
The social media company faced harsh criticism about fake news and Russian election interference on its platforms after the 2016 election.
Following the 2020 election, during the heart of the pandemic, Meta took a harder stand on Covid-19 content, with a policy executive saying in 2021 that the “amount of COVID-19 vaccine misinformation that violates our policies is too much by our standards.” Those efforts may have appeased the Biden administration, but it drew the ire of Republicans.
Meta is once again reacting to the moment, Harbath said.
“There wasn’t a business risk here in Silicon Valley to be more right-leaning,” Harbath said.
While Trump has offered few specific policy proposals for his second administration, Meta has plenty at stake.
The White House could create more relaxed AI regulations compared with those in the European Union, where Meta says harsh restrictions have resulted in the company not releasing some of its more advanced AI technologies. Meta, like other tech giants, also needs more massive data centers and cutting-edge computer chips to help train and run their advanced AI models.
“There’s a business benefit to having Republicans win, because they are traditionally less regulatory,” Harbath said.
Meta’s CEO Mark Zuckerberg reacts as he testifies during the Senate Judiciary Committee hearing on online child sexual exploitation at the U.S. Capitol in Washington, U.S., January 31, 2024.
Evelyn Hockstein | Reuters
Meta isn’t alone in trying to cozy up to Trump. But the extreme measures the company is taking reflects a particular level of animus expressed by Trump over the years.
Trump has accused Meta of censorship and has expressed resentment over the company’s two-year suspension of his Facebook and Instagram accounts following the Jan. 6 attack on the Capitol.
In July 2024, Trump posted on Truth Social that he intended to “pursue Election Fraudsters at levels never seen before, and they will be sent to prison for long periods of time,” adding “ZUCKERBUCKS, be careful!” Trump reiterated that statement in his book, “Save America,” writing that Zuckerberg plotted against him during the 2020 election and that the Meta CEO would “spend the rest of his life in prison” if it happened again.
Meta spends $14 million annually on providing personal security for Zuckerberg and his family, according to the company’s 2024 proxy statement. As part of that security, the company analyzes any threats or perceived threats against its CEO, according to a person familiar with the matter. Those threats are cataloged, analyzed and dissected by Meta’s multitude of security teams.
After Trump’s comments, Meta’s security teams analyzed how Trump could weaponize the Justice Department and the country’s intelligence agencies against Zuckerberg and what it would cost the company to defend its CEO against a sitting president, said the person, who asked not to be named because of confidentiality.
Meta’s efforts to appease the incoming president bring their own risks.
After Zuckerberg announced the new speech policy Tuesday, Boland, the former executive, was among a number of users who took to Meta’s Threads service to tell their followers that they were quitting Facebook.
“Last post before deleting,” Boland wrote in his post.
Before the post could be seen by any of his Threads followers, Meta’s content moderation system had taken it down, citing cybersecurity reasons.
Boland told CNBC in an interview that he couldn’t help but chuckle at the situation.
“It’s deeply ironic,” Boland said.
— CNBC’s Salvador Rodriguez contributed to this report.
WATCH: Meta is returning to free speech tradition, says Facebook’s former chief privacy officer Chris Kelly
Jaap Arriens | Nurphoto | Getty Images
Apple is losing market share in China due to declining iPhone shipments, supply chain analyst Ming-Chi Kuo wrote in a report on Friday. The stock slid 2.4%.
“Apple has adopted a cautious stance when discussing 2025 iPhone production plans with key suppliers,” Kuo, an analyst at TF Securities, wrote in the post. He added that despite the expected launch of the new iPhone SE 4, shipments are expected to decline 6% year over year for the first half of 2025.
Kuo expects Apple’s market share to continue to slide, as two of the coming iPhones are so thin that they likely will only support eSIM, which the Chinese market currently does not promote.
“These two models could face shipping momentum challenges unless their design is modified,” he wrote.
Kuo wrote that in December, overall smartphone shipments in China were flat from a year earlier, but iPhone shipments dropped 10% to 12%.
There is also “no evidence” that Apple Intelligence, the company’s on-device artificial intelligence offering, is driving hardware upgrades or services revenue, according to Kuo. He wrote that the feature “has not boosted iPhone replacement demand,” according to a supply chain survey he conducted, and added that in his view, the feature’s appeal “has significantly declined compared to cloud-based AI services, which have advanced rapidly in subsequent months.”
Apple’s estimated iPhone shipments total about 220 million units for 2024 and between about 220 million and 225 million for this year, Kuo wrote. That is “below the market consensus of 240 million or more,” he wrote.
Apple did not immediately respond to CNBC’s request for comment.
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