Critics condemn media exclusion as judge authorizes closed-door evidence and testimony
The pivotal antitrust trial, with the US Justice Department facing off against Google, enters its third week. The government contends that the internet giant has exploited its dominance to preserve a monopoly. This trial carries significant 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 occurred privately, inaccessible to the public and media. This opacity has incited outrage among transparency advocates and technology critics, who accuse Google of concealing the trial’s details.
People have valid concerns regarding the trial’s lack of transparency,” noted 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 fundamental evidence in this case, and that’s a significant issue.
Government prosecutors have sought to portray Google as the de facto search engine for most Americans, alleging that the tech giant unfairly eliminated competitors. In contrast, Google’s legal team vehemently refutes these accusations, asserting that its dominance stems from consumers choosing a superior product.
Google successfully petitioned Judge Amit Mehta to restrict 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 commenced, Mehta concurred with Google’s attorneys, agreeing to limit public access to audio and video recordings of the proceedings.
Disseminating information about the trial has primarily become the responsibility of journalists, activists, and courtroom observers physically present, thereby increasing the resources and costs needed to actively monitor the case.
Google’s legal team, as well as 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.
As a result, many of the witnesses called thus far have provided only limited public testimony before being moved into closed-door sessions. For instance, 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 previous week, with most of it conducted behind closed doors, with only approximately 10 minutes made public.
Last week, Judge Mehta temporarily ordered the Department of Justice to remove trial documents from its online postings after Google raised concerns.
Legal observers and the media have frequently drawn comparisons between the Google trial and the Department of Justice’s historic 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 high-profile moments and the resulting public interest were made possible by the trial’s accessibility to the public and the significant resources allocated 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 demonstrate Google’s long-standing intent to maintain its monopoly through unfair and anticompetitive practices. Central to these allegations is Google’s substantial annual expenditure, amounting to billions of dollars, on partnerships with companies like Apple, ensuring its status as the default browser on their devices.
According to Van Dyck, the trial’s confidentiality and Google’s efforts to restrict evidence also parallel the company’s internal practices. In the initial stages 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 significance 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 contended 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.
