Chrome Corroding: The DOJ's Attempt to Break up Google’s Illegal Search Engine Monopoly

The Department of Justice’s recent victory against Google in an antitrust lawsuit has put the company in jeopardy of being forced to sell its web browser, Chrome. This push to detach Chrome from its parent company is part of the ongoing lawsuit, U.S. v. Google LLC, spearheaded by the Trump administration, to curtail Google’s general monopolistic practices. On August 5th, 2024, Judge Amit Mehta ruled that “Google has violated Section 2 of the Sherman Act by maintaining its monopoly in two product markets in the United States: general search services and general text advertising” [1]. Given the finding of Google monopolizing the search market, the DOJ is arguing over the proper remedies to address the monopoly, namely the proposed forced sale of Chrome. The DOJ has justification for this argument; as Chrome is the dominant browser in the search industry, it perpetuates Google’s already established search engine, meaning that forcing a sale of Chrome would allow a competitor to introduce a rival search engine. However, a forced sale would be extreme compared to separate remedies proposed to break up other monopolistic aspects of Google’s search services and text advertising. For example, “rather than recommending a divestiture, the DOJ proposed a series of behavioral remedies aimed at limiting Google’s ability to use Android to further its dominance” [2]. If successful, the DOJ’s proposal will be a massive leap in the U.S. government’s ability to ensure fair competition and regulate big business.

The DOJ’s attempt to force Google’s divestment from Chrome is part of the historical battle between the government and large monopolies. The movement to regulate monopolies began in the late 19th century, as a response to harmful oil monopolies colluding to raise prices to unreasonable levels. To stop oil barons from damaging such a vital market, Congress passed the Sherman Act, stating that “every person who shall monopolize […] or combine or conspire with any other person or persons to monopolize any part of the trade or commerce […] shall be deemed guilty of a felony” as well as “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States […] is hereby declared to be illegal” [3]. Through judicial interpretation, this act has been extrapolated to provide an avenue for courts to take specific action breaking up and restricting corporations, measures beyond a simple fine or conviction. When considering the importance of the recent ruling and proposal, it is critical to note that the Sherman Act is not a ban on all monopolies, but simply a ban on companies which achieve monopoly status through anti-competitive tactics. For instance, if a company achieves monopoly credited to their superior product or due to the limited room in the market for multiple competitors, they would not be subject to any legal action. The drafters of the Sherman Act specified this to protect natural monopolies (e.g. transit companies), instead targeting companies engaged in “foul play” to achieve a monopoly that would not exist without stifling competition. Because of these limitations, it has been historically difficult for the U.S. government to prove the existence of an “illegal monopoly” in a court of law, as they must prove that the reason behind a certain company’s high market share is their illegal business tactics and not some sort of natural economic occurrence. Despite this difficulty, Chrome was proven to use anti-competitive methods to establish a search engine monopoly, including paying competitors billions to make Google the default search engine option on their platforms (e.g. Google on Apple’s Safari web browser) [4]. The DOJ’s victory in finding Google guilty of illegal monopolization is historically significant for the long-term struggle to balance regulation of business with maintaining economic freedom. U.S. v. Google LLC has already passed a high bar of proof in determining Google’s illegal monopolization, it remains to be seen whether a forced sale of Chrome will extend the boundaries of governmental regulation past the scrutiny of the Court.

While the DOJ’s victory is significant to the general conflict between government regulation and economic freedom, the complex and contemporary factors involved in suing monopolistic tech companies gives the Court a unique position in its ruling. The justice system is often slow to adapt to new legal issues, whereas the conflicts arising due to the rapidly developing tech industry are fast emerging. This puts U.S. v. Google LLC in a relatively groundbreaking position, as it will help define the Judiciary’s attitude towards companies deviating from traditional business models for which the Sherman Act was created. One of few comparable cases is U.S. v. Microsoft. This case, punishing Microsoft for its monopolistic practices, directly relates to the DOJ’s success in fighting Google. In U.S. v. Microsoft, the DOJ made major progress in adapting to modern legal tech issues by finding Microsoft guilty of using anti-competitive methods to maintain a monopoly in the operating systems industry [5]. The tactics used by plaintiffs to achieve this were replicated in U.S. v. Google LLC; Microsoft’s lawsuit paved the way for the DOJ to go after Google in 2024. However, the DOJ’s proposed remedy to divide Microsoft into two companies, an operating systems company managing windows and an applications company handling assets such as Microsoft office, was unsuccessful, as it was overturned on appeal [6]. Later, the U.S. government and Microsoft settled for less drastic remedies such as banning Microsoft’s exclusive agreements with PC manufacturers and forcing Microsoft to allow competing products to enter the market [7]. This new agreement was a relief for Microsoft, as it saved the company from an over-zealous regulation which would decimate Microsoft’s business. U.S. v. Microsoft shows that tech monopolies similar to Google have a history of regulation but have never been regulated to the extent of the breakup of Standard Oil in 1911. If Google is forced to sell Chrome, the DOJ will take one of the most powerful steps against modern tech companies to date. The remedy that remains to be defined in U.S. v. Google LLC will not just be a tally mark in the century-old back and forth between the government and monopolies, it also has the potential to redefine legal standards of economic regulation for an entire industry coming into existence a mere few decades ago.

Such monumental verdicts will not come easily, as prosecutors will face major hurdles in the path to a breakup of Google’s monopoly. The first complication with any proposed remedy is that Google’s monopoly is achieved with a homogenous and singular product. When regulating traditional companies such as oil trusts during the late 19th century, it was much easier for the Judiciary to break monopolies up, because companies, namely Standard Oil, could be split by geography, amount of product, or levels of integration. For instance, the company Standard Oil, owned by J.D. Rockefeller and controlling over 90% of the U.S. oil market during the turn of the 20th century, was broken up into 34 separate companies primarily based on region in the Supreme Court case Standard Oil co. of New Jersey v. U.S. [8]. In Google’s case, it is much harder for the government to split the company in these ways, as there are only a few central products of Google that cannot be split or shared between multiple companies. Dividing Google into region-based companies is impossible without permanently altering the nature of the company; having a “Google of Minnesota” with a fraction of the business assets is a conceptually difficult thing for the court to mandate and would destroy the viability of Google in a market that requires products like Chrome to be centralized in one company. Additionally, regulating Google raises issues with the DOJ’s anti-trust stance across the tech industry. The DOJ, if successful in forcing a sale of Chrome, would have to approve a buyer. Eligible buyers that could afford or have an interest in such a product, such as Apple, are also subject to the DOJ’s anti-trust lawsuits. Because “‘courts expect any remedy to have a causal connection to the underlying antitrust concern,’” selling Chrome to another big tech monopoly does nothing to address the DOJ’s substantiative issues with monopolies because damaging Google in this way will simply benefit other massive tech monopolies in turn [9]. Finally, the push to force a sale of Chrome is generally seen as too extreme. Many leaders in the tech, financial, and legal industry consider a forced sale to be an over-ask, seeing the DOJ as asking for “‘everything possible, not necessarily with an eye towards what would be probable and proportional’” [10]. Considering plaintiffs’ failures to split Microsoft into two companies in U.S. v. Microsoft, this proposal will likely also fail due to the extent it damages Google [11]. Although the forced sale doesn’t seem as drastic as splitting the company, it would be debilitating as “‘Google uses (Chrome) to enhance its ad business and its search business. If you don't have those, then Chrome would just be a data broker’” [12]. Google’s monopoly is likely not intense enough to warrant this remedy, similar to the decision reached in U.S. v. Microsoft on the appeals level. Besides this, the DOJ might simply withdraw their proposal as “‘(Trump) indicated in October he might not break up the company because it could hurt the American tech industry at a time competition is heating up with China in areas including AI’” [13]. A new Attorney General under Trump will be hesitant to argue for remedies that would significantly damage such a titan of the U.S. tech industry, another factor making the viability of a forced sale questionable. Though unlikely, Google being forced to sell Chrome would be devastating for Google’s dominance over the search market, and a groundbreaking step for the DOJ’s ability to regulate tech monopolies.

Sources:

1. United States v. Google LLC, 661 F. Supp. 3d 480 (E.D. Va. 2023).
2. Mariam BahaaEldein Thabet, U.S. DOJ Seeks Court Order Forcing Google to Sell Chrome Browser, (November 22, 2024 09:10 AM), https://www.jurist.org/news/2024/11/us-doj-seeks-court-order-forcing-google-to-sell-chrome/.
3. Sherman Act, 15 U.S.C. §§ 1–7, 26 Stat. 209 (1890).
4. Id at 1.
5. United States v. Microsoft Corporation, 253 F.3d 34, (D.C. Cir. 2001).
6. Id.
7. U.S. Department of Justice, U.S. V. Microsoft Corporation Information on the Settlement, (Nov. 6, 2001), https://www.justice.gov/atr/usdoj-antitrust-division-us-v-microsoft-corporation-information-settlement.
8. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911).
9. Deborah Mary Sophia, Akash Sriram & Kenrick Cai, Why the US Forced Sale of Google's Chrome Faces Legal Hurdles, (Nov. 22, 2024, 2:24 AM), https://www.reuters.com/technology/legal-hurdles-ahead-googles-forced-sale-chrome-2024-11-21/.
10. Id. At 9.
11. Id at 5.
12. Id at 9.
13. Id. At 9.