Detractors denounce exclusion of media as judge permits closed-door evidence and testimony
Entering its third week, the pivotal antitrust trial features the US Justice Department confronting Google. The government argues that the tech giant has leveraged its dominance to maintain a monopoly, with far-reaching consequences for the tech sector, antitrust legislation, and potentially how hundreds of millions interact with and access the internet. However, a substantial portion of the proceedings has taken place behind closed doors, inaccessible to the public and media. This lack of transparency has sparked outrage among advocates for openness and critics of the technology industry, who accuse Google of concealing crucial details about the trial.
“People have legitimate concerns about the trial’s lack of transparency,” observed Katherine Van Dyck, senior legal counsel at the American Economic Liberties Project, a nonprofit dedicated to advocating for corporate accountability. “We’re not witnessing the presentation of even the most basic evidence in this case, and that’s a significant issue.
Government prosecutors aim to depict Google as the de facto search engine for most Americans, alleging that the tech giant unfairly ousted competitors. In contrast, Google’s legal team vehemently denies these accusations, asserting that its dominance arises from consumers choosing a superior product.
Google successfully petitioned Judge Amit Mehta to limit public access to both evidence and testimony during the initial weeks of the trial, citing the potential disclosure of trade secrets. Even before the trial began, Mehta concurred with Google’s attorneys, agreeing to restrict public access to audio and video recordings of the proceedings.
The responsibility of disseminating information about the trial has largely fallen on journalists, activists, and courtroom observers physically present, thereby increasing the resources and costs required to actively monitor the case.
Google’s legal team, along with attorneys representing other major companies such as Apple, whose executives are implicated in the trial, have also advocated for the confidentiality of documents and testimonies to prevent potential harm to competition.
Consequently, a significant number of witnesses summoned thus far have offered restricted public testimony before transitioning to closed-door sessions. Notably, former Google official John Yoo, Verizon executive Brian Higgins, and DuckDuckGo CEO Gabriel Weinberg had the majority of their testimonies conducted privately. Apple’s AI chief, John Giannandrea, testified on both Thursday and Friday of the preceding week, with the majority of it taking place behind closed doors, and only around 10 minutes made public.
Last week, Judge Mehta temporarily instructed the Department of Justice to take down trial documents from its online postings following concerns raised by Google.
Legal observers and the media have frequently drawn parallels between the Google trial and the Department of Justice’s landmark antitrust lawsuit against Microsoft in the 1990s. The Microsoft case garnered widespread attention and featured memorable moments, including Bill Gates’s infamous deposition video. However, these noteworthy instances and the ensuing public interest were facilitated by the trial’s openness to the public and the substantial resources invested by news outlets.
In the Google case, the government has been able to publicly present internal documents and communications that the Department of Justice contends illustrate Google’s longstanding intent to maintain its monopoly through unfair and anticompetitive practices. Central to these allegations is Google’s significant annual expenditure, totaling billions of dollars, on partnerships with companies like Apple, ensuring its position as the default browser on their devices.
According to Van Dyck, the trial’s confidentiality and Google’s efforts to limit evidence also mirror the company’s internal practices. In the initial phases of the case, the government introduced internal emails involving Google’s chief economist, Hal Varian, and employee Penny Chu. In these emails, Varian and Chu discussed the importance of avoiding specific terms, such as “market share.”
On Tuesday, the government secured a concession in the ongoing discussion about the trial’s public visibility. Judge Mehta ruled that the Department of Justice can continue to upload trial exhibits to the internet at the end of each day. Google’s legal team will have until 9 pm to challenge the inclusion of specific documents for public access. Previously, Google’s lawyers had argued that the government might publish non-public-interest, sensitive information, which could serve as “clickbait.”
Simultaneously, advocates for transparency perceived the dispute between Google and the government over which exhibits should be made available online as yet another effort by the tech giant to maintain maximum confidentiality.
“Google has positioned itself as the custodian of all internet information and presents itself as a significant public resource,” remarked Van Dyck. “However, it appears to want to keep its activities concealed and away from public scrutiny.