In a court filing last month, Google argued that it needed its privacy in an antitrust trial that would spotlight its dominance in online search.
“Once commercially sensitive information is disclosed in open court, the resulting harm to the party’s competitive standing cannot be undone,” the internet giant wrote to the judge presiding over the case.
It was part of a pattern of Google’s pushing to limit transparency in the federal government’s first monopoly trial of the modern internet era. Before opening statements began September 12, Google filed 35 motions and responses in the case – nearly two-thirds of them sealed, according to a tally by The New York Times.
Now as the case, U.S. et al. v. Google, enters its third week in court, it is shaping up to be perhaps the most secretive antitrust trial of the past few decades. Not only has Google argued for the landmark trial to be largely closed off to the public, but so have other companies that are involved, such as Apple and Microsoft. Apple even fought to quash subpoenas, describing them as “unduly burdensome,” to get its executives out of giving testimony.
The upshot is that last week, more than half of the testimony in the trial was given behind closed doors, according to one analysis. When one witness, the CEO of search engine DuckDuckGo, testified on Thursday, he spoke on the stand for nearly five hours – of which just one hour was open to the public. At the judge’s request, the Justice Department, which is one of the plaintiffs, has also removed its presentations and evidence from the open web.
The lack of transparency continued this week as a top Apple executive, Eddy Cue, testified Tuesday about a crucial search agreement that Apple struck with Google. The federal government has accused Google of illegally using agreements with companies like Apple to maintain its monopoly in online search and to crush rivals.
Late Monday, Apple petitioned the court to have Cue’s testimony on the details of its Google agreement take place behind closed doors because it was concerned that the Justice Department’s lawyer could “blurt out” confidential information. Questioning Cue in open court posed “a substantial risk” of revealing Apple’s business relationships and negotiations, the company’s lawyers wrote.
When the trial resumed Tuesday, it began with 45 minutes of closed discussions over confidentiality – including how to handle documents and business details during Cue’s testimony. Then Cue testified for about four hours, more than half of which was closed to the public. During his open testimony, Cue spoke in generalities about how Apple teamed up with Google and revealed few details about the contracts, while the Justice Department presented few exhibits.
“The secrecy surrounding the proceedings is unprecedented in antitrust trials,” Diane Rulke, an organisational behaviour professor at Carnegie Mellon, said in an interview. Four other antitrust experts interviewed by the Times also described the proceedings as unusually opaque, adding that the government’s antitrust case against Microsoft more than 24 years ago was far more accessible to the public and the press.
Google and the Justice Department declined to comment. Apple did not respond to a request for comment.
The secrecy has angered legal and antitrust experts. In addition, Digital Context Next, a trade group and Google critic that represents the business interests of media companies including the Times, filed a court motion to make testimony from witnesses public and to provide access to trial exhibits and emails. The judge, Amit Mehta of U.S. District Court for the District of Columbia, has not responded to the motion, according to the trade group’s head, Jason Kint.
Randal Picker, a law professor at the University of Chicago, said in an interview that the public should be able to monitor and scrutinise arguments from the case in real time, to hold the parties accountable.
“The public should be looking at this – staring at Google and staring at DOJ,” he said. “These are both very powerful actors here.”
But opening up the trial appears unlikely. Mehta said in a pretrial hearing last month that he was not a businessperson and indicated that he was amenable to companies’ arguments that they needed to protect the details of their businesses.
“I am not anyone that understands the industry and the markets in the way that you do,” Mehta said. “And so I take seriously when companies are telling me that if this gets disclosed, it’s going to cause competitive harm.” – This article originally appeared in The New York Times.
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