Google’s on Trial. No Looking.
Reading Time: 7 minutesIt’s the Most Important Tech Trial in Years. All the Juicy Stuff Is Happening in Secret., Why a big chunk of the most important tech trial in years is happening behind closed doors., The Google trial is happening partially in secret. That’s unacceptable.
U.S. v. Google was supposed to be the ‘antitrust trial of the century‘—the highest-profile, and potentially the most consequential, court battle between a major tech company and the feds since the government sued Microsoft in 1998.
In 2020, the Department of Justice under President Donald Trump sued Google for paying phone manufacturers like Apple and Samsung to make Google their default search engine. Federal prosecutors say that those hefty deals allowed Google, already the dominant search engine in the United States, to further monopolize the search and search advertising industries.
Cases like these come around rarely, but they’re crucially important. This one gets to the heart of what might be the key question in the contemporary antitrust debate: How can consumers be harmed when the products and services in question are free?
But since the trial began on Sept. 12, it’s been difficult to glean how things are actually going. That’s no fault of the diligent reporters showing up every day to the federal courthouse in Washington, D.C. If there’s anyone to blame, it’s the guy in the robe.
Judge Amit Mehta, a Barack Obama appointee, has been widely derided by journalists and government transparency advocates for his repeated deference to requests by Google—and the other tech companies involved—to redact documents and hold witness testimony behind closed doors.
The case is ostensibly about protecting the interests of consumers and illuminating potentially untoward practices of a business nearly every American depends upon, but the public has consistently been shut out. Google Search has long been called a ‘black box.’ Fittingly, so is its trial.
Google has argued that the stakes of disclosing the internal workings of the company are high. ‘Once commercially sensitive information is disclosed in open court, the resulting harm to the party’s competitive standing cannot be undone,’ the company told the judge, like a tube of toothpaste begging to keep on its cap.
Of course Google wants secrecy. So do interested parties Apple and Microsoft, both of which have requested sealed testimony in the trial. No private entity wants its practices discussed in litigation—but that’s the whole point of the trial, to probe whether or not business practices were illegal.
Mehta has repeatedly erred on the side of catering to these technology companies’ wishes rather than siding with the public’s right to access. That has led not only to a glut of redacted documents but also a ton of closed-door testimony in which key witnesses are questioned outside of the public’s view.
Lawyers for the New York Times—along with Bloomberg, the Wall Street Journal, the New York Post, and the trade publications MLex and Law360—have asked the judge to grant better access to witness testimony and explain why it’s sealed. ‘The need for openness in this case—arguably the most important antitrust trial in decades, with far-reaching consequences for the future of the tech industry—is both obvious and hard to overstate. Yet much of the testimony has taken place behind closed doors, and much other evidence remains out of public view,’ lawyers for the Times wrote in a court motion.
Leah Nylen, a Bloomberg reporter covering the trial, said in a webinar hosted by a British think tank last week that by the time the media consortium began working on its motion for better access, one-third of the trial days had featured some sort of closed-door testimony. And one entire day was closed off to reporters. ‘You don’t know what their plans are for the day—you find out when you get there,’ Nylen said. ‘So all of the reporters and people who were there from the public showed up and then we had to stand in the hallway the entire time when we had expected to hear this Apple witness do some testimony.’
The Times lawyers also wrote that the press deserves better access to exhibits used in the trial—the documents that the government alleges demonstrate Google’s illegal behavior—which have been heavily redacted without much explanation and were provided only for limited periods to in-person attendees of the trial. The Justice Department had been posting exhibits to its website after each day of the trial until Google objected and Mehta chastised prosecutors for doing so without first seeking his permission. Ultimately, Mehta allowed both parties to post exhibits online in a Sept. 28 order, but didn’t mandate that they do so.
But in the Times’ motion on Oct. 16, its lawyers claim that media outlets ‘still do not have full and timely access,’ which it chalked up to the judge saying the parties ‘may’ do so rather than ‘must’ do so. The motion claimed that the DOJ was posting some exhibits, but many were missing; meanwhile, Google gave strict requirements for reporters requesting exhibits, and often ignored requests or took ‘several days’ to respond.
As of this week, the Times was still negotiating with the parties and the judge for better, quicker access—six weeks after the trial began.
Press advocates are alarmed by what they’ve seen at the Google trial.
Jennifer Nelson, a senior staff attorney at the Reporters Committee for Freedom of the Press, said it’s unusual to have this much testimony in a case be inaccessible to the public. ‘The court has an obligation to make sure that any closure is narrowly tailored to address any potential harm that could come from the public airing of testimony,’ Nelson told me. ‘I struggle to understand how one individual’s entire testimony could be behind closed doors—that does not appear to be narrowly tailored at all.’ Nelson says it’s more procedurally difficult to cleave off open-door and closed-door portions of a given witness’ testimony, but said the public’s right of access should never take the backseat to convenience.
Caitlin Vogus, the deputy director of advocacy at the Freedom of the Press Foundation, has been dismayed by the judge’s suggestions that Google & Co. are experts in what’s a trade secret and what isn’t. That’s not really how it’s supposed to work, she said.
‘Yes, the judge might not be an expert when it comes to tech companies or trade secrets, but he’s an expert in controlling the courtroom and he’s meant to be the champion of the public’s right to access,’ Vogus said. ‘So, really, we expect judges—when parties make sealing requests—not to defer to the parties, but to make their own independent decisions about what particular information truly needs to be kept secret.’
Mitch Stoltz, who leads the antitrust working group at the Electronic Frontier Foundation, says this secrecy comes at an inopportune time, when there’s increased interest from the public—and from Congress—in updating antitrust law for the modern economy, an economy in which few companies are more emblematic than Google.
‘There is a large and growing movement to return antitrust to more populist roots,’ Stoltz said. That movement is focused on curbing all of the effects of monopoly power—not solely higher prices for goods, he said. ‘People are a whole lot more interested now than probably any time since U.S. v. Microsoft—and [with U.S. v. Google] they’re not really able to follow it.’
It doesn’t help that many federal courts have reversed COVID-era policies that allowed widespread audio access to trials like these. During the height of the pandemic, reporters and onlookers may have been able to simply dial in to listen to proceedings. Now they have to show up in person—and wait it out in the hallway when there’s no testimony they’re allowed to hear.
When the U.S. government sued Microsoft in 1998, it alleged that the tech giant was using its dominant position in personal computing to gain an unfair advantage in another digital sector—web browsing. The parties agreed to settle in 2001, striking a deal that the government felt would boost competition—but it also may have curbed Microsoft’s ambitions in consumer tech in a way that allowed new industry entrants, such as Google, to thrive in the still-budding digital sector.
Two decades later, Google’s Chrome is the leading desktop web browser, not Microsoft’s Internet Explorer—which no longer exists. But the more drastic behavioral shift has come from the turn toward the mobile internet. Google was able to conquer the desktop browsing market—baking Google Search into Chrome—but needed to strike deals with phone manufacturers in order to cement its search engine’s ubiquity on the mobile web.
The Google trial has loud echoes of the Microsoft trial. But even 20 years ago, absent vast technological breakthroughs that have come since, access to trial information was far more abundant.
Khushita Vasant, a reporter covering the Google trial for MLex, didn’t cover Microsoft back in the day, but said she understands that paper copies of trial exhibits were handed out daily to the courtroom press. ‘Those were different times of course—it was 25 years ago—but I would take a paper copy of a trial exhibit any day if it meant I could have that piece of evidence in my hands the same day it was shown in court.’
What’s actually emerged from the Google trial is illuminating: We’ve learned that Google pays as much as $10 billion per year to keep its search engine as the default on mobile phones, that Google’s now-CEO Sundar Pichai warned of bad ‘optics’ from these deals in emails years ago, and that Microsoft was willing to drop its Bing branding in order to win a deal to make the search engine the default on Apple’s iPhones. But key testimonies have been shrouded in secrecy: Apple vice president John Giannandrea, who formerly worked at Google, testified publicly for just 10 minutes on Sept. 21, only to return the next day for four hours of closed testimony.
Reporters like Nylen and Vasant are doing a great job covering the trial—but at every step, the judge has made them jump through hoops to do so. And all of the reporters, who are meant to serve as the eyes of the American public, don’t know what they don’t know. ‘Around a thousand exhibits have been pushed into evidence,’ Vasant said. ‘We have no idea what those are.’
‘Without access, and when the public is left in the dark, they’re left wondering what happened, they don’t understand what’s going on, they don’t understand what’s at stake for them,’ Vogus said. ‘It really erodes trust in our court system—and that’s dangerous at a time when trust is already low in our court system. We need courts to be transparent so people can understand them and see how they work.’
Google wants to win this case, but it has already won in one sense by keeping many of its practices out of the public eye.
But the secrecy that pervades this trial is indicative of a broader expectation in the digital sector whereby everything and anything is permitted because it’s free and easy to use. We’ve already ceded our visibility into Big Tech’s black-box systems—systems that govern much of our online lives.
With the Google trial, the public was supposed to be afforded a rare view behind the scenes. Instead, all too often, we’ve been staring at a curtain.
Ref: slate
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