Erin Carroll writes that the lack of public access to the Google search antitrust trial has resulted in unprecedented secrecy which, she writes, could undermine the public’s trust in the outcome and start a dangerous trend amongst other Big Tech companies facing similar trials.
In the most significant antitrust trial in decades, Google is denying that it has an illegal stranglehold on how the public gets information. But its trial strategy tells a different story: the tech giant has advocated for squeezing the flow of public information about the case down to a trickle.
Since trial began in mid-September, Google has filed swaths of documents under seal. It has requested that major portions of key witness testimony be closed to the public. As a result, hours of trial—and once, an entire day—have proceeded behind closed doors. Journalists have been left to linger in hallways unsure of when they will be permitted to re-enter the courtroom.
Although it is common in an antitrust case that certain proprietary information is kept secret, many watching the Google case say the sweep of the secrecy is unprecedented.
The overwhelming success of Google’s obfuscation is a stark reminder that regardless of the outcome of the trial, the public has already lost a great deal. Google is famous for spitting out millions of pieces of information in milliseconds, but it also shares significant responsibility for damaging our information ecosystem.
Google’s spectacular financial success has been fed, in part, by the advertising revenue that once sustained a robust American press. As Google has amassed riches, thousands of newspapers have shuttered and tens of thousands of journalists have lost their jobs. “News deserts” have metastasized. Journalists have faulted Google and Facebook for “killing local journalism.” Just this month, in the midst of the antitrust trial, Google laid off dozens of workers on its “Google News” team, which aggregates news stories for users. It said it was streamlining.
Now, in defending itself against the Department of Justice’s case, and in succeeding in keeping so much secret, Google is benefitting from the waste that it has helped to lay.
The changed landscape can be seen by comparing the Google trial to the antitrust trial against Microsoft in the 1990s. That trial received robust press coverage over the course of months. Half of the roughly 40 seats in the courtroom were reserved for media representatives.
In response to a request from numerous media entities tracking the Microsoft case, the judge granted reporters wide-ranging access to testimony. This included allowing the press to watch a video deposition of then-Microsoft CEO Bill Gates. The New York Times published a story describing Gates’s performance as “evasive and uninformed, pedantic and taciturn—a world apart from his reputation as a brilliant business strategist, guiding every step in the Microsoft Corporation’s rise to dominance in computing.” Press accounts noted that the testimony elicited laughs and head shaking from the judge. Microsoft was so concerned about the media’s reporting on the testimony that it brought a former federal prosecutor to the courthouse to run damage control. He tried to convince reporters that the deposition was “unremarkable.”
Microsoft ultimately lost the case, and the negative publicity surrounding it was a serious hit to its reputation.
More than two decades later, the Google trial is taking place in a vastly different media environment. Press attendance at the trial has been sparse. Anti-monopoly activist Matt Stoller wrote that “some days, our Big Tech on Trial reporting site is one of the few journalists in the court room.” Prior to the trial starting, some nonprofit and advocacy groups petitioned the court for a publicly accessible audio feed of the entire trial, but that request was denied.
Judge Amit P. Mehta has been deferential to Google’s requests to protect what it says is “commercially sensitive” information. At a pre-trial hearing, Mehta told trial lawyers that he would look to them for guidance on what to make public. “I am not anyone that understands the industry and the markets in the way that you do,” he said. As a result, he indicated he would take a “somewhat conservative” approach to disclosure of evidence “because, you know, I can’t see around every corner.” The judge has followed through.
In mid-October, more than a month into trial, the New York Times filed a motion seeking greater access to exhibits and notice of courtroom closures so that it has the opportunity to object to them. In response, Mehta ordered some new procedures regarding exhibits. But the new procedures would still allow for disclosure delays, and given that a significant portion of the trial is already over, the impact of the changes is likely to be limited.
The dangers of secrecy in this case are numerous. Most dramatically, it is possible that greater public scrutiny might affect its outcome. As any investigative journalist can attest (and as the “observer effect” in physics posits) events play out differently when they are being watched. The Supreme Court has indicated that press scrutiny improves the functioning of the judicial system. The press “has always been regarded as the handmaiden of effective judicial administration,” the Court has written. “What transpires in the courtroom is public property,” and the press should have a “free hand” to cover it, according to the Court.
Another danger of secrecy is that it will result in public skepticism about whatever opinion Mehta reaches. Knowing it has been denied access to chunks of the process and stacks of the evidence, the public will be less likely to accept the outcome. And although a cynic might argue that the general public won’t particularly care about the results of an antitrust case, this would be shortsighted. According to the government’s briefing in the case, nearly 90% of internet searches in the United States rely on Google. Mehta’s ruling has the potential to impact nearly all Americans.
The secrecy also has implications beyond Google and this trial. It is likely to motivate other tech giants to try to curb public access to the pending cases against them. Both Meta and Amazon face similar lawsuits by the DOJ, Federal Trade Commission, and various states. There is little doubt that Meta and Amazon’s lawyers are watching the Google case closely and sharpening their strategies.
With the Google trial likely more than halfway over, the window for bringing greater openness to the proceedings is closing. As the DOJ’s complaint calls Google a “monopoly gatekeeper for the internet,” the trial is unfortunately revealing that with a diminished American press, Google is a gatekeeper for our legal system, too.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
