Trusts and Estates

The Power of Preference or Monopoly? Unpacking Google’s Search Engine Domination

Donovan Ennevor, MJLST Staffer

When searching for an answer to a query online, would you ever use a different search engine than Google? The answer for most people is almost certainly no. Google’s search engine has achieved such market domination that “to Google” has become a verb in the English language.[1] Google controls 90% of the U.S. search engine market, with its closest competitors Yahoo and Bing holding around 3% each.[2] Is this simply because Google offers a superior product or is there some other more nefarious reason?

According to the Department of Justice (“DOJ”), the answer is the latter: Google has dominated its competitors by engaging in illegal practices and creating a monopoly. Federal Judge Amit Mehta agreed with the DOJ’s position and ruled in August 2024 that Google’s market domination was a monopoly achieved through improper means.[3] The remedies for Google’s breach of antitrust law are yet to be determined; however, their consequences could have far reaching implications for the future of Google and Big Tech.

United States v. Google LLC

In October 2020, the DOJ and 11 states filed a civil suit against Google in the U.S. District Court for the District of Columbia, alleging violations of U.S. antitrust laws.[4] A coalition of 35 states, Guam, Puerto Rico, and Washington D.C. filed a similar lawsuit in December 2020.[5] In 2021, the cases were consolidated into a single proceeding to address the overlapping claims.[6] An antitrust case of this magnitude had not been brought in nearly two decades.[7]

The petitioners’ complaint argued that Google’s dominance did not solely arise through superior technology, but rather, through exclusionary agreements designed to stifle competition in online search engine and search advertising markets.[8] The complaint alleged that Google maintained its monopolies by engaging in practices such as entering into exclusivity agreements that prohibited the preinstallation of competitors’ search engines, forcing preinstallation of Google’s search engine in prime mobile device locations, and making it undeletable regardless of consumer preference.[9] For example, Google’s agreement with Apple required that all Apple products and tools have Google as the preinstalled default—essentially an exclusive—search engine.[10] Google also allegedly used its monopoly profits to fund the payments to secure preferential treatment on devices, web browsers, and other search access points, creating a self-reinforcing cycle of monopolization.[11]

According to the petitioners, these practices not only limited competitor opportunities, but also harmed consumers by reducing search engine options and diminishing quality, particularly in areas like privacy and data use.[12] Furthermore, Google’s dominance in search advertising has allowed it to charge higher prices, impacting advertisers and lowering service quality—outcomes unlikely in a more competitive market.[13]

Google rebutted the petitioners’ argument, asserting instead that its search product is preferred due to its superiority and is freely chosen by its consumers.[14] Google also noted that if users wish to switch to a different search engine, they can do so easily.[15]

However, Judge Mehta agreed with the arguments posed by the petitioners and held Google’s market dominance in search and search advertising constituted a monopoly, achieved through exclusionary practices violating U.S. antitrust laws.[16] The case will now move to the remedy determination phase, where the DOJ and Google will argue what remedies are appropriate to impose on Google during a hearing in April 2025.[17]

The Proposed Remedies and Implications

In November, the petitioners filed their final proposed remedies—both behavioral and structural—for Google with the court.[18] Behavioral remedies govern a company’s conduct whereas structural remedies generally refer to reorganization and or divestment.[19]  The proposed behavioral remedies include barring Google from entering exclusive preinstallation agreements and requiring Google to license certain indexes, data, and models that drive its search engine.[20] These remedies would help create more opportunities for competing search engines to gain visibility and improve their search capabilities and ad services. The petitioner’s filing mentioned they would also pursue structural remedies including forcing Google to breakup or divest from its Chrome browser and Android mobile operating system.[21] To ensure Google adheres to these changes, the petitioners proposed appointing a court-monitored technical committee to oversee Google’s compliance.[22]

It could be many years before any of the proposed remedies are actually instituted, given that Google has indicated it will appeal Judge Mehta’s ruling.[23] Additionally, given precedent it is unlikely that any structural remedies will be imposed or enforced.[24] However, any remedies ultimately approved would set a precedent for regulatory control over Big Tech, signaling that the U.S. government is willing to take strong steps to curb monopolistic practices. This could encourage further action against other tech giants and redefine regulatory expectations across the industry, particularly around data transparency and competition in digital advertising.

 

Notes

[1] See Virginia Heffernan, Just Google It: A Short History of a Newfound Verb, Wired (Nov. 15, 2017, 7:00 AM), https://www.wired.com/story/just-google-it-a-short-history-of-a-newfound-verb/.

[2] Justice Department Calls for Sanctions Against Google in Landmark Antitrust Case, Nat’l Pub. Radio, (Oct. 9, 2024, 12:38 AM), https://www.npr.org/2024/10/09/nx-s1-5146006/justice-department-sanctions-google-search-engine-lawsuit [hereinafter Calls for Sanctions Against Google].

[3] United States v. Google LLC, 2024 WL 3647498, 1, 134 (2024).

[4] Justice Department Sues Monopolist Google For Violating Antitrust Laws, U.S. Dep’t of Just. (Oct. 20, 2020), https://www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws [hereinafter Justice Department Calls for Sanctions].

[5] Dara Kerr, United States Takes on Google in Biggest Tech Monopoly Trial of 21st Century, Nat’l Pub. Radio, (Sept. 12, 2023, 5:00 AM), https://www.npr.org/2023/09/12/1198558372/doj-google-monopoly-antitrust-trial-search-engine.

[6] Tracker Detail US v. Google LLC / State of Colorado v. Google LLC, TechPolicy.Press, https://www.techpolicy.press/tracker/us-v-google-llc/ (last visited Nov. 20, 2024).

[7] Calls for Sanctions Against Google, supra note 2 (“The last antitrust case of this magnitude to make it to trial was in 1998, when the Justice Department sued Microsoft.”).

[8] Justice Department Calls for Sanctions, supra note 4.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Kerrr, supra note 5.

[15] Id.

[16] United States v. Google LLC, 2024 WL 3647498, 1, 4 (2024).

[17] Calls for Sanctions Against Google, supra note 2.

[18] Steve Brachmann, DOJ, State AGs File Proposed Remedial Framework in Google Search Antitrust Case, (Oct. 13, 2024, 12:15 PM), https://ipwatchdog.com/2024/10/13/doj-state-ags-file-proposed-remedial-framework-google-search-antitrust-case/id=182031/.

[19] Dan Robinson, Uncle Sam may force Google to sell Chrome browser, or Android OS, The Reg. (Oct. 9, 2024, 12:56 pm), https://www.theregister.com/2024/10/09/usa_vs_google_proposed_remedies/.

[20] Brachmann, supra note 18.

[21] Exec. Summary of Plaintiff’s Proposed Final Judgement at 3–4, United States v. Google LLC No. 1:20-cv-03010-APM (D.D.C. Nov. 20, 2024). Id at 4.

[22] Id.

[23] See Jane Wolfe & Miles Kruppa, Google Loses Antitrust Case Over Search-Engine Dominance, Wall Street J. (Aug. 5, 2024, 5:02 pm), https://www.wsj.com/tech/google-loses-federal-antitrust-case-27810c43?mod=article_inline.

[24] See Makenzie Holland, Google Breakup Unlikely in Event of Guilty Verdict, Tech Target (Oct. 11, 2023), https://www.techtarget.com/searchcio/news/366555177/Google-breakup-unlikely-in-event-of-guilty-verdict. See also Michael Brick, U.S. Appeals Court Overturns Microsoft Antitrust Ruling, N.Y. Times (Jun 28, 2001), https://www.nytimes.com/2001/06/28/business/us-appeals-court-overturns-microsoft-antitrust-ruling.html. (summarizing the U.S. Court of Appeals decision overturning of the structural remedies imposed on Microsoft in an antitrust case).

 

 


Estate Planning in the Digital Age: What Every Millennial Needs to Know

Nicole Petrow, MJLST Staffer

As our society becomes increasingly tied to digital technologies, the world of estate planning is faced with novel questions. Today, many people own significant digital assets, including anything from electronically stored photos and videos to valuable domain names and cryptocurrency. The field of estate planning is evolving with law of digital property as well as the digitization of the will drafting process.

How is estate planning complicated by advancing technologies?

After death, accessing a loved one’s digital presence can be a significant way by which grieving loved ones preserve cherished memories. There are over 2.5 quintillion bytes of data created each day, many of these through communication platforms, social media, online storage, and other digital mediums. However, passwords, data encryption, criminal laws, and data privacy laws complicate how to plan for the eventuality of passing these assets.

Social media presents interesting challenges for proper planning, because simply sharing account passwords may not always be proper. Using another person’s password to access an account, even if freely given, is potentially punishable under the federal Computer Fraud and Abuse Act as it may violate the account’s Terms of Service agreement by “exceeding authorized access.” Platforms have various methods of handling the deaths of users: Facebook and Instagram have options to “memorialize” accounts after death, while other platforms such as Twitter and LinkedIn allow account deactivation.

Data privacy laws add an additional wrinkle in accessing a loved one’s online accounts after death. Until recently, the privacy protections ensured by the Stored Communications Act prevented a duly appointed fiduciary from accessing the contents of a deceased user’s online account. In response to this problem, the Uniform Law Commission promulgated the Revised Uniform Fiduciary Access to Digital Assets Law (RUFADAA), which has been adopted in 44 jurisdictions. The RUFADAA is significant for many reasons, particularly because it formally recognizes digital property as a property right that can be managed and accessed by third parties after death.

Proper planning is also essential for anyone with digital assets of significant financial value. Problems arise when owners of domain names or cryptocurrency die without having identified their assets, or planned for their transfer.

Why should I care?

 For the average Millennial and Gen Zer, death planning may feel like a morbid project, better suited for the wealthy and elderly. A 2019 survey shows that only 1 in 5 of 18-34 year olds have an estate plan in place. However, there are many reasons to prepare an estate plan regardless of wealth, age, or family status.

Primarily, estate planning allows a person to direct what happens to their money and property after their death. But this is not the entire equation. Estate plans allow you to:

  • Outline and identify your online assets. Proper planning ensures that your loved ones will be able to identify, access, and preserve any online presence you may have. This includes social media accounts, personal blogs, and anything of financial value. If no one knows of your online presence, it may be lost after death.
  • Plan for the transfer of your debts. Depending on the type of loan you have, your debt may not die with you. Certain private loans will transfer to your co-signer in the event of your death.
  • Outline your desired end of life care. Drafting Health Care Directives and Powers of Attorney allow you to express your desired medical treatment in the event of your incapacitation.
  • Make things easier on your loved ones. Clearly expressing your desires for your end of life care, as well as outlining your intended asset distribution, will help your grieving loved ones make big decisions without the stress of wondering “what you would have wanted.”
  • Avoid unwanted “intestate” succession. If you die without a will, your state’s intestate succession laws will determine who receives and controls your assets. These may not reflect your desires – drafting a simple will can avoid this issue.
  • Arrange the guardianship of any minor children. Planning for this potential is essential for any parent, particularly if your state’s intestate succession statute does not reflect your desires for your children.

What about the will drafting process itself?

Technological advancements are changing the ways estate planning documents themselves are being drafted and admitted to probate courts around the world. Modern cases are asking new questions of previously settled law: is a will written on the iPhone Notes app sufficient? In Microsoft Word? What about a will hand-written by stylus on a tablet?

In response to questions such as these, the Uniform Law Commission drafted the Uniform Electronic Wills Act to accommodate electronic aspects of will executing. This act primarily encourages the validity of electronically signed and cloud-stored wills. Some commentators suggest that these electronic wills are likely to work best for young people with fewer assets and simple succession plans.

The law of wills and trusts is likely to continue evolving rapidly in order to keep pace with technological development. To preserve any Instagram masterpieces or bitcoin troves for those that will appreciate them in the future it is important to stay informed of the status of the law and have a plan in place. If this is your first time thinking about an estate plan, take stock of your assets, your family situation, and your state’s intestacy laws, and consider contacting a professional to plan for the future.