DOJ Targets Google’s AI Position After Search Monopoly Ruling

The Justice Department is taking aim at Google’s position in the generative AI field as it tries to leverage a court ruling that the tech giant is an unlawful monopolist in online search.

Any potential remedies stemming from the August ruling must account for the substantial impact that artificial intelligence will likely have on the search industry, as well the risk that the new technology will further entrench the Alphabet Inc. firm’s dominance, the DOJ said in an Oct. 8 court filing.

The filing offers further proof of US antitrust enforcers’ interest under the Biden administration in confronting dominant tech firms’ place in the fledgling market.

The rise of generative AI has spawned startups offering AI-assisted search products. But the DOJ and the Federal Trade Commission have signaled a concern over Big Tech’s ability to control the emergent ecosystem.

The DOJ is “trying to leverage this win in the search case into something more regulatory in the AI stack,” said Rebecca Haw Allensworth, a Vanderbilt University law professor who has followed the DOJ’s cases against Google.

Such a push is part of a broader strategy from the Justice Department. It said that it is considering moving for a breakup of Google, including changes that would prevent the tech giant from using such products as the Chrome browser and Android operating system from giving it an advantage in search.

Google has vowed to vigorously fight those potential remedies, saying they risk user privacy and security while threatening to hold back “American innovation at a critical moment.”

Even so, the DOJ could face additional challenges in persuading Amit Mehta, the judge on the US District Court for the District of Columbia overseeing the case, to target a space like AI, which is still in its infancy.

“Courts are fundamentally conservative and aim not to overreach,” Eleanor Tyler, a Bloomberg Law legal analyst, said. “That’s why it’s so hard to convince a court to think ahead about potential markets. What will monopoly maintenance look like in the future? That’s what DOJ is fundamentally arguing in the AI piece.”

‘Distribution of Tomorrow’

Remedies the DOJ is considering include requiring Google to permit websites crawled for search results to opt out of training or appearing in any Google-owned AI product or search feature. The department is also considering making the company share data and models used for search, including those used in AI-assisted search features, with competitors.

“Fully remedying these harms requires not only ending Google’s control of distribution today, but also ensuring Google cannot control the distribution of tomorrow,” the DOJ said.

More than 90% of unique search phrases on the web are only seen by Google, according to Mehta’s decision, offering the company an immense advantage in user data.

The department is concerned that, without a court order reducing that advantage, “Google may use its monopoly power in the general search services market and leverage that power into the evolving AI technology markets,” Bradley Weber, a Locke Lord LLP antitrust partner, said.

The DOJ didn’t comment beyond the filing.

Alphabet in May integrated its AI chatbot Gemini, a competitor of OpenAI’s ChatGPT, into search. Google also now features AI-based answers at the top of its search results. Those evolving dynamics make the DOJ’s AI focus an “important and forward-looking consideration,” said Karina Montoya, a policy analyst at the anti-monopoly group Open Markets Institute.

But critics say the DOJ is trying to put its thumb on the scale of an industry that didn’t figure into the underlying search case.

Mehta didn’t consider the emerging technology as a competitive threat to Google search, which “helped the DOJ’s case,” Neil Chilson, a former FTC chief technologist, said. “This is a deep irony of the DOJ’s request.”

“All of this is taking place in an AI race,” added Chilson, now the head of AI policy at the Abundance Institute, a tech nonprofit associated with the Charles Koch-backed Center for Growth and Opportunity. “And Mehta has to be aware that making a cutting-edge AI company give some of their secret sauce to competitors would only advantage China.”

Lee-Anne Mulholland, Google’s vice president for regulatory affairs, argued in a blog post that “business models in AI, much less winners and losers, have yet to be determined, and competition globally is fierce.”

Google did not respond to a request for further comment.

Long Road

The Biden administration is scrutinizing various aspects of the artificial intelligence industry. Jonathan Kanter, the DOJ’s antitrust division head, has also noted he’s closely monitoring deals that AI companies are striking with content creators.

In a speech in June, Kanter expressed concerns over how generative AI compounds the risk that companies can control the marketplace for news and other content without sufficient competition.

The DOJ said it will refine its proposed remedies next month. Mehta is set to hold hearings in April, with a decision expected in August 2025.

That timeline would likely be lengthened by years if Google or the DOJ appeal the ruling. Following multiple appeals, the Supreme Court could review the case in 2027 or 2028, said Bill Baer, chief of the DOJ antitrust division during the Obama administration.

“In this case odds are good the Supreme Court would review it,” Baer, a Brookings Institution visiting fellow, said. “That’s why it’s right for the DOJ to have a plan in effect at some point down the road.”

That road map also shows how uncertain everything is. A November win by Donald Trump would lead to an overhaul at the DOJ, with new leaders who could have different priorities for the case.

After George W. Bush won the presidency in 2000, Justice Department leadership altered its strategy and reached a settlement with Microsoft a year later, after a judge overturned an earlier ruling that called for a breakup.

“There’s a risk that could happen there too,” Baer said.

The case is United States v. Google LLC, D.D.C., 1:20-cv-03010, 10/8/24.