But if Mehta pursues the approach, he should make some improvements on the EU’s rules, says Kamyl Bazbaz, senior vice president of public affairs at DuckDuckGo. Users should be prompted with the choice screen periodically, not just once, Bazbaz says. They shouldn’t have to deal with popups from Google urging them to switch the default to Google, he adds. And when users first interact with a competing search app, there should be an easy way to set it as the default app.
With these added measures, some searchers could find themselves more reliably ditching Google. Others could be frustrated by the recurring requests.
Order a Divestiture
Contract bans and choice screens are examples of conduct remedies. But the Justice Department in recent years has expressed a preference for what are known as structural remedies, or breaking off parts of a company.
Most famous is the breakup of telephone giant Bell in the 1980s, creating a variety of independent companies, including AT&T. But courts aren’t always on board. When Microsoft lost an antitrust battle in the 1990s, a federal appeals panel rejected an order to break up the company, and Microsoft eventually settled on a range of conduct changes.
A one-time sale is preferred by regulators in part because it doesn’t require them to invest in monitoring the ongoing compliance of companies in terms of conduct remedies. It’s a much cleaner break, and some antitrust experts contend that structural remedies are more effective.
The challenge is figuring out what parts of a company need to be separated. John Kwoka, an economics professor at Northeastern University who recently served as an adviser to FTC chair Lina Khan, says the key is identifying businesses in which ownership by Google are “distorting its incentives.” He says that, for instance, breaking off search could open the door to Google’s Android partnering with a different search engine.
But Hovenkamp doubts the potential of a search sell-off to increase competition because the service would remain popular. “Selling Google Search would just transfer the dominance to another firm,” he says. “I don’t know what sort of breakup would work.”
Some financial analysts who study Google parent Alphabet are also skeptical. “Alphabet’s scale, continued strong execution, and financial strength mitigate this legal risk and the possible ensuing financial and business model ramifications,” Emile El Nems, vice president for Moody’s Ratings, said in a press statement.
Other legal experts envision a future in which search results would come from Google and the ads in the experience from another company that’s spun off from Google. It’s unclear how that remedy would affect users, but it’s possible ads could end up being less relevant and more intrusive.
Force Google to Share
Mehta found in his judgment that Google provides users a superior experience because it receives billions of more queries than any other search engine, and that data fuels improvements to the algorithms that decide which results to show for a particular query.
Rebecca Haw Allensworth, a law professor at Vanderbilt University following the Google case, says one of the most aggressive remedies would be requiring Google to share data or algorithms with its search competition so they too could improve. “Courts do not like to force sharing between rivals like that, but on the other hand, the judge seemed very concerned about how Google’s conduct has deprived its rivals of what they really need to compete—scale in search data,” she says. “Forcing data sharing would directly address that concern.”
