In a lawsuit last month, Google said it needed its privacy in an antitrust trial that would highlight its dominance in online search.
“Once commercially sensitive information is disclosed in open court, the resulting harm to a 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 Google pushing to limit transparency in the federal government’s first antitrust prosecution of the modern Internet era. Before opening statements began on September 12, Google had filed 35 motions and responses in the case — nearly two-thirds of which were closed, according to a New York Times tally.
Now as it stands, US et al. v. Google, which is entering its third week in court, is perhaps the most secretive antitrust trial of the past few decades. Not only did Google demand that this historic experiment be largely closed to the public, but so did other companies involved, like Apple and Microsoft. Apple even fought to have the subpoenas quashed, calling them “unjustifiably burdensome,” to prevent its executives from testifying.
The result is that last week, more than half of the testimony in the trial was given behind closed doors, according to one of them analysis. When one witness, the CEO of search engine DuckDuckGo, testified on Thursday, he spoke on stage for nearly five hours — of which only one hour was open to the public. At the judge’s request, the Department of Justice, one of the plaintiffs, removed her presentations and evidence from the open Internet.
The lack of transparency continued this week, as Eddy Cue, a senior Apple executive, testified Tuesday about an important search agreement Apple has with Google. The federal government has accused Google of illegally using agreements with companies like Apple to maintain its monopoly on online search and crush competitors.
Late Monday, Apple petitioned the court to have Mr. Q testify about the details of its agreement with Google take place behind closed doors because it was concerned that Justice Department lawyers might “divulge” classified information. Questioning Mr. Q in open court presented a “substantial risk” of revealing Apple’s business relationships and negotiations, the company’s lawyers wrote.
When the trial resumed on Tuesday, it began with 45 minutes of closed-door discussions about confidentiality – including how documents and business details were handled during Mr Keogh’s testimony. Mr. Keogh then testified for nearly four hours, more than half of which was closed to the public. During his open testimony, Mr. Q spoke generally about how Apple cooperated with Google and revealed few details about the contracts, while the Justice Department provided little evidence.
“The secrecy surrounding the proceedings is unprecedented in antitrust prosecutions,” Diane Roelke, a professor of organizational behavior at Carnegie Mellon University, said in an interview. Four other antitrust experts interviewed by the Times also described the proceedings as unusually vague, adding that the antitrust case the government brought against Microsoft more than 24 years ago was 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 critic of Google that represents the business interests of media companies including The Times, has filed a motion with the court to make witness testimony public and to provide access to trial documents and emails. Judge Amit P. Mehta of the U.S. District Court for the District of Columbia did not respond to that suggestion, according to the trade group’s president, Jason Kent.
Randall C. Baker, a law professor at the University of Chicago, said in an interview that the public should be able to monitor and scrutinize the arguments of a case in real time, to hold the parties accountable.
“The public should be looking at this — staring at Google and staring at the Department of Justice,” he said. “These are two very strong actors here.”
But opening a trial seems unlikely. Judge Mehta told a pre-trial hearing last month that he was not a businessman and indicated that he accepted the companies’ arguments that they needed to protect the details of their businesses.
“I am not someone who understands the industry and markets the way you do,” Justice Mehta said. “So I take very seriously when companies tell me that if this were disclosed, it would cause competitive harm.”
Efforts to suppress information in this case have been long-standing.
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, motivated by a desire to avoid embarrassing disclosures and secrets of competitive companies. Google partners, such as Samsung, and competitors such as DuckDuckGo, have also sought to protect some of their documents and the testimony of their executives from the public.
In one of the legal filings, Microsoft asked the court to consult with it regarding confidentiality throughout the trial.
Microsoft wrote to the court that the right of public access is “not absolute.” The company added that revealing its “business strategies, deliberations and internal negotiations” would harm it.
Microsoft declined to comment.
The closed-door nature of the trial was on full display Thursday when the Justice Department subpoenaed John Giannandrea, a top Apple executive and former head of Google’s search division, to testify about the importance of the domain to search engines and his directions regarding Apple’s search efforts.
Even before Mr. Giannandrea began answering questions, Kenneth Dentzer, the Justice Department’s chief prosecutor, said Apple had expressed a strong preference for testimony behind closed doors on almost every issue. Then, less than 15 minutes after Mr. Giannandrea took the stand, Justice Mehta declared the day over.
The Apple CEO returned to the podium Friday morning, which began in closed session. More than four hours later, Mr. Giannandrea left the courtroom with Apple’s lawyers without starting the proceedings.
The secrecy “undermines the legitimacy of our legal system,” said Matt Stoller, research director at the American Economic Liberties Project, an antitrust think tank. His group tried to persuade the court to open a telephone line for the trial and failed.
Government lawyers sometimes agree to withhold information to speed up a case, said Tim Wu, a law professor at Columbia University who worked on antitrust policies in the Biden administration and who has contributed opinion pieces to the Times.
“These things are war,” he said. “You want the information, and you don’t understand the cost to the public or reporters.”
But Mr. Wu pointed out that there is an inherent irony in Google’s quest to limit disclosure.
“It’s ridiculous that a company can absorb all our information and know everything about us and we can’t know anything about them,” he said. “We deserve a better look at them.”
David McCabe Contributed to reports.
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