How to Hide a $2 Trillion Antitrust Trial

Judge Amit Mehta has blocked the public from getting access to the Google antitrust trial. Last week, over half of the trial was held in secret. This behavior subverts the very rule of law.

In 1998, the richest man in the world, Bill Gates, had to answer to the public in an antitrust trial. Gates had been a titan for almost two decades, gracing the cover of Time Magazine multiple times as a young genius. That all changed when he was deposed by government lawyers. “The Bill Gates on the courtroom screen,” reported the New York Times, “was evasive and uninformed, pedantic and taciturn, a world apart from his reputation as a brilliant business strategist, guiding every step in Microsoft Corp.'s rise to dominance in computing.”

For eight months, the Microsoft antitrust trial was front-page news, the drama of the trillion-dollar personal computing revolution unveiled to the public. One result was that Microsoft, afraid of public exposure years later, refused to use its control over the browser to kill nascent rivals, in particular a young search company called Google.

Today, we should be in a similar moment, only this time with Google as the titan on trial. Google has engaged in behavior that’s almost identical to what Microsoft did in terms of coercion of rivals, and just as consequential in terms of shaping the future. And yet, the reporting and interest in this trial is minuscule compared to what we saw 25 years ago. Frankly, some days, our Big Tech on Trial reporting site is one of the few journalists in the courtroom, which is astonishing. This dynamic is especially odd because, unlike 1998, we are in an anti-monopoly moment, with political interest in corporate behavior far more elevated than it was in 1998.

What gives? There are a few reasons for this odd disconnect, but one reason is very simple - there was public access to the Microsoft trial in 1998, and today the judge, a guy named Amit Mehta, has effectively barred the public from seeing anything meaningful or interesting. In my preview of the trial, back in August, I focused on Mehta, because I knew the dynamics would be organized by his decision-making. And so it has.

Let’s compare the two trials. For Microsoft, the judge ruled on behalf of media organizations that the deposition of Bill Gates would be unsealed, a deposition that was not meaningful for the trial, but also critically important to the historical record, and one you can watch online today. He also unsealed over a hundred transcripts of other depositions from industry players, including ones that weren’t used in the trial itself. This public record was critical to the reporting, and to public understanding of the industry.

But this Google trial? It began with Judge Mehta denying a third-party motion to broadcast a publicly accessible audio feed of the trial on the grounds that judicial policy did not allow him to. Meanwhile, Google lawyers have explicitly argued that the judge should avoid allowing documents to become public solely because it is “clickbait.” To put it differently, the search giant literally argues material should stay sealed merely because it is interesting. Imagine if Bill Gates could have availed himself of that innovative legal argument!

These arguments should be laughed out of court. And yet, Mehta takes them seriously, which has led to a predominantly secret trial, deadeningly boring to the public because key documents have been deleted and the important or embarrassing moments are held in secret.

As a result of this monumental decision, the trial is now only available to people who can go to the court in D.C. And yet, even if you can come to the courthouse, it’s hard to see the trial because huge portions are fully sealed. There is often no clear indication beforehand of how long the trial will be sealed for. And when court ends a sealed session and re-opens to the public, it often resumes within a couple of minutes of opening the door to the courtroom. This means anyone who wants to watch the public portions of the trial just has to wait outside the courtroom to see when it re-opens. Moreover, even though you can watch the trial from the courtroom or a public overflow room, unless you are in the media room, electronic devices are not allowed in either.

It’s a ten-week trial, but a chronicle of Friday’s court date is as good an example as any. Big Tech on Trial, waited all day, with no information, as the lawyers carried on in what is known as a “closed session.” This is a common occurrence. Much of the trial is happening behind closed doors, including procedural questions that should clearly be public. Indeed, Big Tech on Trial looked at the transcripts for the last week to estimate roughly how much of the trial was held in secret, based on how much they are redacted. Easily half of the week’s proceedings were sealed. Here’s a breakdown of how much of the trial was sealed on each day:

• Monday, Sept. 18: roughly half of the trial was sealed

• Tuesday, Sept. 19: trial was fully open

• Wednesday, Sept. 20 roughly three quarters of the trial was sealed. That morning, Bloomberg reporter Leah Nylen came to the courtroom with a First Amendment attorney hired by Bloomberg. But the attorney never got a chance to speak because the court unexpectedly began in a closed session and the public was asked to leave the courtroom (after Judge Mehta reportedly had a private meeting with the lead attorneys in his chambers).

• Thursday, Sept. 21: roughly half of the trial was sealed

• Friday, Sept. 22: the entirety of testimony was sealed. Court opened up only for a few minutes to deal with administrative matters at the very end of the day.

And that means we heard little of the most important testimony, perhaps of the entire trial, from a man named John Giannandrea. Giannandrea is a senior executive at Apple who reports directly to Tim Cook and came to Apple from Google in 2018, where he was head of Search. The relationship between Apple and Google is at the heart of the trial, and, in the year this man left from Apple to Google, the two firms went from aggressive competitors to gentle collaborators aspiring to work together as “one company”. And yet, the public heard just ten minutes of open-court testimony from Giannandrea. Another senior Apple executive Eddy Cue will testify on Tuesday, so there’s a chance we’ll learn more. Stranger things have happened.

Mommy, Where Do Conspiracy Theories Come From?

Judge Mehta isn’t just closing the courtroom, he’s also allowing Google to hide evidence without consequence. On a separate post, I’ve put up seven different ways he’s doing that, from letting Google avoid disclosing documents based on false claims of attorney-client privilege to doing nothing even when Google executives used “history-off chats” to destroy conversations after 24 hours even after Google was on a litigation hold. But the point is, Mehta is far more concerned that Google isn’t embarrassed, and almost wholly uninterested in public access.

The problem here isn’t just the judge or Google. The Department of Justice shouldn’t be let off the hook either. The trial team, which is generally doing a good job, seems mostly unconcerned with public access. They didn’t support a set of nonprofits who made a motion for a public audio feed, and they tend to litigate in closed session whenever Google seems uncomfortable, so as not to come close to offending the judge. Indeed, when the judge expressed a bit of frustration that exhibits were posted publicly, government lawyers immediately pulled down their website and said they would work with Google to make sure everyone was satisfied with the process. That’s the opposite of standing your ground.

Trials are supposed to be public, and the government should fight for them to be public. Public access and a public record in a trial, especially when the powerful are concerned, is a core part of what makes the legal system different from those in authoritarian regimes. Not vigorously challenging Google in its penchant for secrecy is wholly inconsistent with the DOJ’s obligations to its client, which is the people of the United States.

At this point, I am hearing from random commentators that the fix is in, and it’s hard not to disagree. Conspiracy theorists about how the corporations, judges, and the government are in collaboration could look at this trial and have a field day. That’s the price of secrecy, there’s just no way to uphold the legitimacy of a legal order when redactions are both unnecessary and routine.

Fortunately, this trial isn’t the last time Google will be on the stand. And despite Mehta’s caution, we are learning more about Google, just not nearly as much as we should. I didn’t know what to expect from this trial, but a blackout of information wasn’t on my radar. But I guess I shouldn’t have been. After all, who knows more about the value of privacy than Google?