The end may be in sight

Day 35-36: Google continued to present its defense in what might be the trial's penultimate week

The end of the trial is starting to come into sight.

Google has said it will be calling its final witness Professor Kevin Murphy next Monday (Nov. 13), and rest its case before the end of Tuesday (Nov. 14). After that, the government plaintiffs are expected to put on a rebuttal case — but the DOJ has only listed a few possible witnesses, so it should be relatively short. It seems likely that the trial will be finished by the end of next week. (Of course, it will take several months after that until Judge Mehta issues a final ruling.)

Given the late stage of the trial, there haven’t been too many surprising developments during the last two days of testimony, but here’s a brief update on what we’ve heard midway through Week 9.

Google’s defense has featured the testimony of a number of longtime employees who joined the company long before it became the tech giant it is today. (Photo by Kim Kulish/Corbis via Getty Images).

Monday, November 6 (Day 35)

This week picked up where last week left off — with Google’s economic expert Mark Israel facing cross-examination from DOJ.

The DOJ’s questioning of Israel on Monday focused on Israel’s three opinions relating to search advertising: 1) Plaintiffs define away the strong search advertising competition Google faces; 2) Google does not have search advertising monopoly power; 3) Google has not harmed search advertising competition or advertisers.

Before passing the witness to the States, DOJ tried to chip away at these conclusions and Israel’s underlying analysis. This included asking Israel about data that came out of a real-world case study when Nike temporarily paused its advertising on Facebook. The data indicated that during this pause Nike re-allocated most of its Facebook advertising budget to non-search advertising channels. The percentage of its advertising budget that Nike spent on search advertising barely fluctuated during this pause; it was 48% before the pause, 51% during the pause, and 50% after the pause ended.

After cross-examination from the States on Israel’s final opinion that Google’s SA360 has not harmed competition or advertisers, Google conducted a short re-direct examination of Israel. Google’s questions re-focused Israel on a fundamental disagreement between the parties: who does Google compete with in search? Israel re-iterated his earlier testimony that there is no relevant market for general search services. Instead, Israel said Google competes with all kinds of websites for different types of queries — or as this Bloomberg article put it, “Google Competes for Searches With Everyone Online.”

The next witness Google called in its defense was Jennifer Fitzpatrick. Fitzpatrick is another longtime Google employee who has risen up the ranks. She said she first worked at Google in 1999 when she was one of four summer interns for the company; now, she is the SVP for Core Systems and Experiences who reports directly to CEO Sundar Pichai.

Fitzpatrick’s testimony on direct-examination seemed intended as a response to DOJ’s claim that Google’s conduct has directly harmed consumers through diminished privacy. Fitzpatrick walked the court through a number of privacy-related features that Google has developed over the years, which she said were motivated by Google’s three-layered approach to privacy: 1) secure by default, 2) private by design, and 3) user in control.

The bulk of DOJ’s cross-examination of Fitzpatrick was built around an email that Google Chief Marketing Officer Lorraine Twohill sent to Fitzpatrick, Pichai, and other Google executives on “Data Privacy Day” in January 2021. In the email, Twohill described herself as “privacy-obsessed” and suggested dozens of improvements Google could make to enhance user privacy.

DOJ focused in on eight of Twohill’s suggestions, which Fitzpatrick confirmed had not yet been implemented — 33 months after the email was sent — despite Google having the engineering capability to do so. Fitzpatrick defended that Google has to make hard decisions about how to expend its limited resources, and frequently rejects or delays proposals even when they are made by senior executives. On re-direct from Google, she also identified a couple of Twohill’s suggestions that Google had worked to implement.

The suggestions from Twohill that DOJ focused on included requiring all Google apps to ask permission before accessing user data, “mak[ing] Incognito mode truly private,” making it easier for users to delete their data, and providing an option through Google One subscriptions for users to be able to pay for an ads-free Google search experience.

Tuesday, November 7 (Day 36)

This morning began with testimony from yet another Google veteran employee, Richard Holden. I was out of court this morning so I unfortunately missed most of Holden’s testimony, but from what I heard at the end, it seemed focused on Google’s travel vertical. Holden worked as the General Manager of Google Travel until recently.

After Holden completed his testimony shortly after the lunch break, Google called Adrienne McCallister. McCallister has worked at Google for more than 12 years and currently serves as its VP of Global Partnerships.

Most of McCallister’s testimony was focused on the period from 2019 to 2021 in which she led the negotiations of Google’s revenue share agreements (RSAs) with the major US phone carriers. During direct-examination, McCallister argued that the RSAs — in which Google shares its search ad revenue with the carriers in exchange for default placement of Google search — helped improve competition in the mobile device market by differentiating Android phones from iPhones. In support of this claim, she specifically cited the prominent placement of the Google search widget and Chrome browser, as well as the security upgrades that Google requires from its Android partners.

The courtroom closed for about a half hour of McCallister’s testimony — a fairly rare occurrence since the early weeks of the trial. After court re-opened, DOJ’s cross-examination presented McCallister with multiple internal emails/documents discussing Google’s negotiations with Verizon. One email that McCallister was cc’d on described the “highest priority” of negotiations as “re-securing exclusivity.”

McCallister finished her testimony around 4:15, after which Judge Mehta adjourned early for the day instead of having Google present additional video deposition testimony. Google said that tomorrow it will call another Google employee Jamie Rosenberg for live testimony before playing videotaped portions of depositions from other witnesses.

As I mentioned last week, this is my final week personally covering the trial, so I am planning a final birds-eye-view recap to send out on Thursday or Friday. Big Tech on Trial will continue to provide coverage through the end of the trial, though. I will have more details on that in my final piece.