In a court filing last month, Google argued that it needed its privacy in an antitrust trial that would highlight its dominance in online search.
“Once commercially sensitive information is revealed in open court, the resulting damage to the party’s competitive position cannot be undone,” the internet giant wrote to the judge presiding over the case.
It was part of a pattern of pressure from Google to limit transparency in the federal government’s first monopoly lawsuit in the modern Internet era. Before opening statements began on September 12, Google filed 35 motions and responses in the case, nearly two-thirds of them sealed, according to a New York Times tally.
Now, US et al. v. Google, entering its third week in court, is shaping up to be perhaps the most secretive antitrust trial in decades. Not only has Google advocated for the landmark trial to be largely closed to the public, but so have other companies involved, such as Apple and Microsoft. Apple even fought to quash the subpoenas, describing them as “excessively burdensome,” to prevent its executives from giving testimony.
The result is that last week more than half of the testimony in the trial was given behind closed doors, according to a analysis. When one witness, the CEO of the search engine DuckDuckGo, testified Thursday, he spoke on the stand for nearly five hours, only one hour of which was open to the public. At the judge’s request, the Department of Justice, which is one of the plaintiffs, also removed its filings and evidence from the open web.
The lack of transparency may continue this week when a top Apple executive, Eddy Cue, will testify Tuesday about a crucial search deal Apple reached with Google. The federal government has accused Google of illegally using deals with companies like Apple to maintain its monopoly on online search and crush rivals.
On Monday night, Apple asked the court that Mr. Cue’s testimony about the details of its deal with Google be held behind closed doors because it feared the Justice Department lawyer could “reveal” confidential information. Questioning Cue in open court posed “a substantial risk” of revealing Apple’s business relationships and negotiations, the company’s lawyers wrote.
“The secrecy surrounding the proceedings is unprecedented in antitrust trials,” Diane Rulke, a professor of organizational behavior at Carnegie Mellon, said in an interview. Four other antitrust experts interviewed by The Times also described the process as unusually opaque, adding that the government’s antitrust case against Microsoft more than 24 years ago was much 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. Additionally, 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 witness testimony public and provide access to evidence and emails from the trial. . The judge, Amit P. Mehta of the U.S. District Court for the District of Columbia, has not responded to the motion, according to the trade group’s director, Jason Kint.
Randal C. Picker, a law professor at the University of Chicago, said in an interview that the public should be able to monitor and examine the case’s arguments in real time, to hold the parties accountable.
“The public should be watching this — looking at Google and the Department of Justice,” he said. “These two are very powerful actors here.”
But opening the trial seems unlikely. Judge Mehta said at a pre-trial hearing last month that he was not a businessman and indicated that he was willing to accept the companies’ arguments that they needed to protect the details of their businesses.
“I am not someone who understands the industry and the markets like you do,” Justice Mehta said. “And that’s why I take it seriously when companies tell me that if this gets out, it will cause competitive harm.”
Efforts to hide information about the case have been going on for a long time.
Since the case was filed in October 2020, Google and others have argued that the court should keep financial transactions, business relationships and internal affairs out of public view, driven by a desire to avoid embarrassing disclosures and competitive corporate secrets. Google partners such as Samsung and rivals such as DuckDuckGo have also tried to hide some of their documents and executive testimony from the public.
In a legal filing, Microsoft asked the court to consult with it about confidentiality throughout the trial.
The right of public access “is not absolute,” Microsoft wrote to the court. The company added that disclosure of “its business strategies, deliberations and internal negotiations” would harm it.
Microsoft declined to comment.
The closed-door nature of the trial was evident Thursday when the Justice Department called John Giannandrea, a senior Apple executive and former Google search chief, to testify about the importance of scale for search engines and their guidance on Apple’s search efforts.
Even before Giannandrea began answering questions, Justice Department chief litigator Kenneth Dintzer said Apple had expressed a strong preference for testimony to be in closed session on almost all issues. Then, less than 15 minutes after Mr. Giannandrea took the stand, Judge Mehta called it a day.
The Apple executive returned to the booth on Friday morning, which began behind closed doors. More than four hours later, Giannandrea left the courtroom with Apple’s lawyers without the proceedings beginning.
Matt Stoller, research director at the American Economic Liberties Project, an antitrust think tank, said the secrecy “undermines the legitimacy of our legal system.” His group tried, unsuccessfully, to persuade the court to open a teleconference line for the trial.
Tim Wu, a law professor at Columbia University who worked on antitrust policy in the Biden administration and has contributed opinion essays to the Times, said government lawyers sometimes agreed to seal information to speed a case’s progress.
“These things are war,” he said. “You want to get the information and you don’t internalize the cost to the public or journalists.”
But Wu noted there was an inherent irony in Google’s push to limit disclosure.
“It’s ironic that a company absorbs all our information and knows everything about us and we can’t know anything about them,” he said. “We deserve to see them better.”
David McCabe contributed reports.
