But if Mehta is going to pursue this approach, he’ll need to improve the EU’s rules, says Kamyl Bazbaz, DuckDuckGo’s senior vice president of public affairs. Users should be prompted to make a choice periodically, not just once, Bazbaz says. They shouldn’t have to deal with pop-ups 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.
With these extra measures, some searchers could abandon Google more reliably. Others could become frustrated with the recurring requests.
Order a divestment
Contract bans and choice screens are examples of behavioral remedies. But the Justice Department has in recent years expressed a preference for what are known as structural remedies, or breaking up parts of a company.
Most famously, the breakup of telephone giant Bell in the 1980s created a variety of independent companies, including AT&T. But the 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 with a series of behavioral changes.
A one-time sale is favored by regulators, in part because it saves them the investment of monitoring companies’ ongoing compliance with behavioral measures. It’s a much cleaner break, and some antitrust experts argue that structural measures are more effective.
The challenge is figuring out which parts of a business to separate. 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 Google owns that “distort incentives.” He says that killing off search, for example, could open the door for Google’s Android to partner with another search engine.
But Hovenkamp doubts the potential of a search engine sale to increase competition, since the service would remain popular. “Selling Google Search would just transfer dominance to another company,” he says. “I don’t know what kind of split would work.”
Some financial analysts who cover Google parent Alphabet are also skeptical. “Alphabet's scale, continued strong execution and financial strength limit this legal risk and the potential financial and business model ramifications that result,” Emile El Nems, vice president of Moody's Ratings, said in a press release.
Other legal experts foresee a future in which search results come from Google, and ads are in the experience of another company spun off from Google. It’s unclear how that solution would affect users, but it’s possible that ads would become less relevant and more intrusive.
Force Google to share
Mehta concluded in his assessment that Google provides a better user experience because it receives billions more searches than any other search engine. In addition, data is used to improve the algorithms that determine which results are displayed for a given search.
Rebecca Haw Allensworth, a law professor at Vanderbilt University who has been following the Google case, says one of the most aggressive remedies would be to force Google to share data or algorithms with its search competitors so they too can improve. “Courts don’t like to force this kind of sharing between rivals, but on the other hand, the judge seemed very concerned about how Google’s behavior 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.”
