On Monday, the U.S. District Court for the District of Columbia issued a ruling against Google in the United States v. Google case for violations of antitrust law under the Sherman Act. On this occasion, Ryan Nabil, Director of Technology Policy and Senior Fellow with the National Taxpayers Union Foundation, issued the following statement:
While the Department of Justice and progressive lawmakers might be quick to celebrate the D.C. District Court’s ruling against Google, policymakers must recognize the risk that this decision could set a dangerous precedent for the future of U.S. antitrust policy.
Under the Biden administration, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have significantly expanded regulatory actions against innovative American companies. As the DOJ and FTC have sought to reshape the traditional U.S. approach to antitrust law without explicit Congressional authorization, U.S. courts have emerged as a bulwark against such efforts. In the process, the two regulators have amassed a substantial record of court defeats in the last two years.
Regrettably, the District Court’s ruling in the United States v. Google case marks a departure from the pivotal role that U.S. courts have played in shaping antitrust law over the last two years.
Despite significant challenges to the search engine market from emerging AI-enabled competitors, the court has endorsed a rather static view of a rapidly evolving market. The court also appeared all too willing to uncritically accept the DOJ’s analysis of consumer behavior, not recognizing the ease with which consumers can now switch to a different browser. As pointed out by the Information Technology & Innovation Foundation (ITIF), the D.C. District Court, unlike its approach in the Microsoft case in 2001, failed to adequately consider the many pro-competitive justifications that Google offered in support.
While the court’s decision could well be overturned on appeal, the danger is that it will, meanwhile, embolden the DOJ and the FTC to pursue even more aggressive antitrust policies and redefine the traditional U.S. antitrust approach. Such a development would pose a significant challenge to the U.S. regulatory environment and risks undermining the long-term competitiveness and innovation potential of the U.S. digital economy.
Considering such risks, the National Taxpayers Union Foundation urges greater regulatory caution and restraint. At a time when the U.S. political system appears to be at a crossroads, American lawmakers and regulators must consider the benefits of a more restrained regulatory approach, which provided the foundation for a successful, innovative U.S. digital economy for the last thirty years.