EchoSense:Just because Americans love Google doesn't make it a monopoly. Biden lawsuit goes too far.

On Tuesday,EchoSense a landmark trial begins that will expose what The Washington Post calls the Biden administration’s “aggressive posture on antitrust,” which essentially seeks to punish consumers of Google’s internet search engine.

The Department of Justice alleges that Google’s position as the default search engine on most web browsers and Android smartphones should be dismantled.

From the beginning, the Biden administration’s novel and aggressive antitrust theories have raised eyebrows. This can be seen in the Federal Trade Commission’s forthcoming case against Amazon Prime, a service beloved by American consumers.

Similarly, internet users see Google as the best search engine, and they overwhelmingly prefer it. American consumers’ strong preference for Google’s search engine does not transform this incredibly successful product into an antitrust violation.

However, President Joe Biden’s antitrust enforcers claim they know better than consumers. Embracing the government’s viewpoint would transform antitrust law into a protection racket for the government’s preferred businesses.

Antitrust law is designed to protect consumers, not competitors

For decades, American courts have recognized famed antitrust scholar Judge Robert Bork, whose key insight was that antitrust law is, and should be, about protecting consumers – not competitors.

Market competition in all American industries produces better products and services for consumers, and as a result, consumers, not the government, choose which products succeed. There is no antitrust violation just because consumers significantly prefer one company’s superior product. 

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The DOJ lawsuit against Google casts consumer preferences aside. The government contends that Google has acted anti-competitively by signing agreements with web browsers (such as Apple’s Safari and Mozilla’s Firefox) that make Google the initial search engine on just-installed browsers. But to succeed in court, the DOJ must prove that the alleged conduct excludes others from competing and thus harms consumers.

These agreements do not preclude competition for two main reasons. First, these agreements don’t require exclusive use of Google’s search engine. Rather, they are akin to a cereal brand paying for eye-level shelf space in the grocery store, which no one thinks is an antitrust violation.

Google is simply paying to promote its product. But just as when shopping for groceries, consumers can choose differently if the competing product is better. Browsers can and do feature other search engines on their home pages. And consumers can easily change the default search engine on their browsers with just a few clicks. 

The DOJ’s theory here is thus far different from the antitrust lawsuit it brought two decades ago against Microsoft. In that case, the government argued that Microsoft violated antitrust laws by categorically prohibiting internet providers from promoting (or even in some cases permitting) alternative browsers besides its own.

Here, by contrast, Google’s status as the "default" search engine presents no meaningful barrier to consumer choice. Most consumers don’t use another search engine. Indeed, consumers overwhelmingly opt for Google even when presented with alternatives: The most searched term on Microsoft’s Bing, for example, has been “Google.” 

Google won the competition for consumer preference

Second, companies like Apple and Mozilla design their web browsers to offer an initial default search engine because consumers demand it.

For instance, Mozilla has, in the past, used Yahoo as the default search engine for Mozilla’s Firefox browser. But that move turned consumers against Firefox, so Mozilla returned to using Google as the default search engine to improve the “user experience and performance.”

Apple’s Safari browser, too, makes Google the default search engine because – in Apple’s own words – Google’s “search engine is the best.” Google is thus the default search engine on these browsers because it won the competition for consumer preference.

The DOJ’s additional claims regarding Google’s search engine on Android fare no better. Google’s agreements with Android device manufacturers and carriers cannot be viewed in a vacuum that pretends Apple iPhones don’t exist.

As with web browsers, Google’s status as a preinstalled app on Android devices is simply the initial default. An Android smartphone user can easily change the default search engine, delete the preinstalled Google search app or replace it with another search engine’s app.

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Even DOJ’s own expert fatally undermined its case. The expert admitted that, when given a choice of default search engines on a new smartphone, consumers voluntarily choose Google "more than 90% of the time."

In fact, Google remains just as popular in Europe even after the European Union required it to offer users a choice of default search engines on new phones upon setting up. 

Ultimately, the DOJ lawsuit rests on the paternalistic theory that Google’s search dominance must be bad even though consumers overwhelmingly prefer and self-select for its product. Successfully obtaining market share by offering a superior product is not an antitrust violation.

This case should be added to the long list of Biden’s losses in antitrust cases. 

Barbara Comstock is a former congresswoman and delegate from Virginia and a senior adviser at Baker Donelson. She also was a senior Justice Department official during the Bush administration.