A GALAXY NOT SO FAR AWAY: THE STATES STRIKE BACK AT BIG TECH OVER GOOGLE AND FACEBOOK’S ALLEGED “JEDI BLUE” PRICE-FIXING SCHEME

By: Avery Bennett, Volume 105 Staff Member

 INTRODUCTION

Recently, mounting scrutiny and criticism of technology companies’ business practices have led to well publicized calls for investigations and probes into potentially anticompetitive behavior.[1] Amid these calls to curb the industry’s power, state officials have revealed a coordinated effort to contain anticompetitive practices by technology companies,[2] particularly price-fixing.[3] If the end goal of these efforts is to protect consumers, however, lawmakers should appeal to the rising demand for antitrust reform,[4] ensuring that antitrust law equips the necessary tools to meet the unique challenges[5] that technology companies may pose to efforts to bolster competition.

I. STATES FILE SUIT

In mid-December 2020, ten state attorneys general filed suit against Google in district court, alleging that “Google is guilty of . . . antitrust evils,” with the goal of “ensur[ing] that Google won’t be evil anymore.”[6] Boiled down, the lawsuit targets Google’s advertising empire and its alleged engagement in an anticompetitive price-fixing deal with Facebook.[7] At issue is Google’s use of “programmatic advertising,”[8] which employs a real-time bidding system in which the advertising space on websites is auctioned off to winners over the course of mere milliseconds.[9] Google dominates programmatic advertising, prompting companies a few years back to develop a new system called “header bidding.”[10] After initial interest in header bidding, Facebook allegedly retreated after it was reportedly offered an exclusive deal by Google, giving it special access to “a certain percentage of auctions (90%) regardless of the bids; more time to bid . . . , along with the visibility to be able to identify 80% of smartphone users and 60% of web users.”[11] The complaint against Google alleges that in response to Facebook’s increasing encroachment on Google’s advertising market share, Google struck a deal with Facebook, dubbed “Jedi Blue,” granting Facebook “information, speed and other advantages in the [mobile advertising] auctions that Google runs” in exchange for Facebook’s agreement to cut back on its competition against Google.[12]

The complaint details the Jedi Blue deal and numerous other allegations of anticompetitive conduct by Google,[13] with costs that “every American” will ultimately bear, amounting to

[A] very high tax . . . [that would] otherwise flow[] to the countless online publishers and content producers like online newspapers, cooking websites, and blogs who survive by selling advertisements on their websites and apps. These costs invariably are passed onto the advertisers themselves and then to American consumers. The monopoly tax Google imposes on American businesses—advertisers like clothing brands, restaurants, and realtors—is a tax that is ultimately borne by American consumers through higher prices and lower quality on the goods, services, and information those businesses provide.[14]

II. GOING BEYOND THE STATES’ LAWSUIT

 Legally and politically, the lawsuit has raised questions. The fact that all ten attorneys general in the filing are Republicans has introduced doubts about the true motives behind the lawsuit,[15] given recent accusations by prominent party voices that technology companies are censoring conservative views.[16] But there are reasons to not dismiss the suit too quickly. Other states may soon join, and this is far from the only government case[17] or private lawsuit[18] alleging anticompetitive behavior on the part of Google. Others have also pointed out that, even if the Google platforms at issue involve advertising, which may be classified as commercial speech and be subject to considerable First Amendment protections,[19] “antitrust regulation is unrelated to the suppression of expression on the basis of neither source nor content.”[20] In fact, even where noncommercial speech is concerned, courts have been willing to impose restraints on anticompetitive conduct, even where the First Amendment may be implicated.[21]

Thus, perhaps the most salient questions have focused on the impact of the litigation’s outcome on consumers. On the one hand, scholars have expressed that “[t]he harm from lack of competition in digital markets will manifest itself in quality and innovation, as well as from higher prices to advertisers. . . . the impact on consumer welfare of a decline in innovation due to lack of competition is likely to be large . . . .”[22] Some commentators, however, have expressed concern about the ability of our current antitrust system to effectively police anticompetitive behavior from technology behemoths without backfiring.[23]

Google, in turn, has responded by calling the lawsuit “meritless” and remarking that “[d]igital ad prices have fallen over the last decade. . . . Google’s ad tech fees are lower than the industry average. These are the hallmarks of a highly competitive industry.”[24] But recent experience from antitrust cases against another technology leviathan, Amazon, suggests that low prices do not necessarily indicate a competitive market in the multifaceted, complex modern world of big tech.[25] Others have suggested that the consumer-oriented focus on pricing misses the mark,[26] and that in lieu of focusing on consumers’ short-term interests—“pegging competition to a narrow set of outcomes”—gauging competition should “examine the competitive process itself.”[27]

This case highlights yet again growing concerns across the political spectrum about antitrust reform in the age of technology,[28] with some commentators observing that “[a]ntitrust law stands at its most fluid and negotiable moment in a generation.”[29] Regulators should take this opportunity to take a careful look at antitrust law’s role far beyond consumer prices and analyze “a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values.”[30] If states and regulators are going to strike back at big tech over antitrust and anticompetitive concerns, they may need a new playbook—and scrutinizing Jedi Blue is a good opportunity to do just that and shift the focus of antitrust onto the longer-term interests of consumers.

 

[1] See, e.g., Cecilia Kang & David McCabe, House Lawmakers Condemn Big Tech’s ‘Monopoly Poower’ and Urge Their Breakups, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/technology/congress-big-tech-monopoly-power.html [https://perma.cc/2247-D5Q5].

[2] See Complaint, Texas v. Google LLC, No. 4:20cv957 (E.D. Tex. filed Dec. 16, 2020).

[3] See, e.g., Kang & McCabe, supra note 1 (discussing a recent House Judiciary Committee report, which found that “Amazon, Apple, Facebook and Google had roles as ‘gatekeepers’ in common and controlled prices” and expressing concerns about “higher prices for consumers” as a result of some technology companies’ business practices).

[4] See, e.g., William E. Kovacic, Keeping Score: Improving the Positive Foundations for Antitrust Policy, 23 U. Pa. J. Bus. L. 49, 131 (2020) (“A large body of commentary and discourse among elected officials has expressed acute dissatisfaction with the existing antitrust regime and has proposed a number of measures to enhance it or supplement it with new regulatory frameworks.”); Taylor Hatmaker, New Antitrust Reform Bill Charts One Possible Path for Regulating Big Tech, Tech Crunch (Feb. 4, 2021, 4:16 PM), https://techcrunch.com/2021/02/04/klobuchar-antitrust-law-enforcement-reform-act-booker-markey/ [https://perma.cc/B3DU-QUD2]; Lauren Feiner, Congress Just Finished Its Big Tech Antitrust Report — Now It’s Time to Rewrite the Laws, CNBC (Oct. 7, 2020, 7:49 AM), https://www.cnbc.com/2020/10/07/after-congress-big-tech-antitrust-report-its-time-to-rewrite-the-laws.html [https://perma.cc/XYY7-YWMC]; Nandita Bose & Diane Bartz, U.S. Lawmakers Detail Big Tech’s Market Abuses and Press for Strict Reform, Reuters (Oct. 6, 2020, 3:29 PM), https://www.reuters.com/article/us-usa-tech-antitrust-congress-idUSKBN26R3H7 [https://perma.cc/P3FU-2VML].

[5] See infra Part II.

[6] Complaint at 1, Texas v. Google LLC, No. 4:20cv957 (E.D. Tex. filed Dec. 16, 2020). The complaint seems to be taking aim at Google’s long-time unofficial motto, “Don’t be evil.” See Kate Conger, Google Removes ‘Don’t Be Evil’ Clause from Its Code of Conduct, Gizmodo (May 18, 2018, 5:31 PM), https://gizmodo.com/google-removes-nearly-all-mentions-of-dont-be-evil-from-1826153393 [https://perma.cc/B3Q7-L3MG].

[7] See Complaint at 1, Texas v. Google LLC, No. 4:20cv957 (E.D. Tex. filed Dec. 16, 2020); Ryan Tracy & Jeff Horwitz, Inside the Google-Facebook Ad Deal at the Heart of a Price-Fixing Lawsuit, Wall St. J. (Dec. 9, 2020, 1:59 PM), https://www.wsj.com/articles/inside-the-google-facebook-ad-deal-at-the-heart-of-a-price-fixing-lawsuit-11609254758?mod=hp_lead_pos3 [https://perma.cc/54GF-VMVA].

[8] See Enrique Dans, Jedi Blue: A Scandal that Highlights, Yet Again, the Need to Regulate Big Tech, Forbes (Jan. 19, 2021, 5:40 AM), https://www.forbes.com/sites/enriquedans/2021/01/19/jedi-blue-a-scandal-that-highlights-yet-again-the-need-to-regulate-bigtech/?sh=5c9841fd270d [https://perma.cc/J2CA-DDXB].

[9] See id.

[10] See id. Header bidding is “much more transparent . . . than . . . Google’s systems.” Id.

[11] Id.

[12] John D. McKinnon & Ryan Tracy, Ten States Sue Google, Alleging Deal with Facebook to Rig Online Ad Market, Wall St. J. (Dec. 16, 2020, 6:25 PM), https://www.wsj.com/articles/states-sue-google-over-digital-ad-practices-11608146817?mod=article_inline [https://perma.cc/V9HQ-4469]. See Daisuke Wakabayaski & Tiffany Hsu, Behind a Secret Deal Between Google and Facebook, N.Y. Times (Jan. 17, 2021), https://www.nytimes.com/2021/01/17/technology/google-facebook-ad-deal-antitrust.html [https://perma.cc/NJ87-9E7L]; Complaint at 6, Texas v. Google LLC, No. 4:20cv957 (E.D. Tex. filed Dec. 16, 2020).

[13] Complaint passim, Texas v. Google LLC, No. 4:20cv957 (E.D. Tex. filed Dec. 16, 2020).

[14] Id. at 7.

[15] See What’s Code ‘Jedi Blue’, or the Alleged Google-Facebook Deal to Rig Online Ad Market?, The Week (Dec. 17, 2020, 5:12 PM), https://www.theweek.in/news/biz-tech/2020/12/17/whats-code-jedi-blue-or-the-alleged-google-facebook-deal-to-rig-online-ad-market.html [https://perma.cc/EW53-FH7H].

[16] Id.

[17] Id.

[18] See, e.g., Fitzsimmons Law Firm of Wheeling Part of Antitrust Lawsuit Against Google, Facebook, The Intelligencer (Jan. 30, 2021), https://www.theintelligencer.net/news/top-headlines/2021/01/fitzsimmons-law-firm-of-wheeling-part-of-antitrust-lawsuit-against-google-facebook [https://perma.cc/6YVW-ZQUQ].

[19] Paula Lauren Gibson, Does the First Amendment Immunize Google’s Search Engine Search Results from Government Antitrust Scrutiny?, 23 Competition: J. Antitrust & Unfair Competition L. Section State Bar California 125, 134 (2014).

[20] Id. at 136.

[21] See, e.g., id. at 137 (citing Associated Press v. United States, 326 U.S. 1, 6–7, 19–20 (1945) (holding that “preventing members from selling news to nonmembers, and also making it difficult for nonmembers to join were restraints of trade.”)).

[22]Final Report, Stigler Comm. on Digit. Platforms 91 (2019). Google’s alleged anticompetitive conduct in advertising has also been blamed for damage to industries, including local journalism. See, e.g., John D. McKinnon & Ryan Tracy, Ten States Sue Google, Alleging Deal with Facebook to Rig Online Ad Market, Wall St. J. (Dec. 16, 2020, 6:25 PM), https://www.wsj.com/articles/states-sue-google-over-digital-ad-practices-11608146817?mod=article_inline [https://perma.cc/2V8K-9JUX].

[23] See Shira Ovide, When Tech Antitrust Failed, N.Y. Times: On Tech (Jan. 15, 2021), https://nytimes.com/2021/01/15/technology/when-tech-antitrust-failed.html [https://perma.cc/34SX-XTD2]; Herbert J. Hovenkamp, Antitrust Policy and Inequality of Wealth, Competition Pol’y Int’l: Antitrust Chron. (Oct. 14, 2017), https://competitionpolicyinternational.com/antitrust-policy-and-inequality-of-wealth [https://perma.cc/P8SC-AX5D] (“Should antitrust condemn every practice that reduces the defendant’s prices or costs, or improves the quality of its product when rivals are injured or suppliers are worse off? That policy would rather quickly drive the economy back into the Stone Age, imposing hysterical costs on everyone.”).

[24] Richard Walters & Kiran Stacey, Google Accused of Colluding with Facebook in Online Ad Market, Fin. Times (Dec. 16, 2020), https://ft.com/content/d2333141-ace0-469d-b75c-8b5f30367993 [https://perma.cc/T8P4-V95B].

[25] See Constance Grady, The 2010s Were Supposed to Bring the Ebook Revolution. It Never Quite Came, Vox (Dec. 23, 2019, 10:00 AM), https://vox.com/culture/2019/12/12/20991659/ebook-amazon-kindle-ereader-department-of-justice-publishing-lawsuit-apple-ipad [https://perma.cc/8X4Q-ZHYN] (noting that following an antitrust suit against Amazon which ended with Amazon forced to sell e-books at publisher-set prices but free to discount print books, print books on Amazon are now often cheaper than e-books, making “Amazon . . . more dominant than ever in the print book market.”).

[26] See David Streitfeld, Amazon’s Antitrust Antagonist Has a Breakthrough Idea, N.Y. Times (Sept. 7, 2018), https://www.nytimes.com/2018/09/07/technology/monopoly-antitrust-line-khan-amazon.html [https://perma.cc/9QC3-CJSJ].

[27] Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 716 (2017).

[28] See Daniel L. Crane, Antitrust’s Unconventional Politics, 104 Va. L. Rev. Online 118, 118 (2018); see also David Streitfeld, Amazon’s Antitrust Antagonist Has a Breakthrough Idea, N.Y. Times (Sept. 7, 2018), https://www.nytimes.com/2018/09/07/technology/monopoly-antitrust-line-khan-amazon.html [https://perma.cc/9QC3-CJSJ].

[29] See Crane, supra note 28, at 118.

[30] Crane, supra note 28.