There’s a saying in hockey: You miss 100 percent of the shots you don’t take.
On Tuesday a federal court in Washington had a wide-open shot to hold Google accountable for sweeping antitrust violations. Instead of taking the shot, the court banked the puck off the boards, hoping for a lucky bounce.
Last year, after years of grueling litigation, the same court ruled that Google illegally monopolized online search. For those of us who believe in vigorous antitrust enforcement, it was a breakthrough. At long last, a court confirmed what law enforcement, rival companies and consumers long suspected: Google had abused its dominance to snuff out competition. The court’s ruling validated the simple truth that antitrust law applies as forcefully to today’s Silicon Valley giants as it once did to the robber barons of steel and rail.
The court’s remedy was supposed to translate that victory into accountability. But Tuesday’s ruling, which requires that Google share its search results and some other data with rival companies, fell short. The court declined to order Google to divest its Chrome browser. Puzzlingly, it even permitted Google to keep paying billions of dollars each year to rivals like Apple to make Google search the default choice on their devices — even though that was the very tactic that Google used to illegally cement its dominance.
This isn’t just about righting past wrongs. The court’s weak remedy also gives Google a green light to run much of the same unlawful search playbook with artificial intelligence (such as its Gemini chatbot) without fear of consequence.
The court declined to impose clear, decisive obligations on Google, despite the fact that the company is a repeat offender. In the past year, three federal courts found that it violated antitrust laws. Judges in all three cases excoriated Google for destroying evidence.
For those of us who fought this battle against Google, Tuesday’s result was deflating. The first Trump administration filed the case in 2020, backed by a bipartisan coalition of state attorneys general. When I became head of the Justice Department’s antitrust division in 2021, I inherited the case, oversaw the trial and helped draft the government’s initial set of proposed remedies. The second trial to determine remedies, which resulted in Tuesday’s ruling, was led again by a bipartisan team of state attorneys general and President Trump’s Justice Department.
My disappointment is not just that Google was not properly held accountable, for the stakes extend beyond this particular case. If companies can flout the rules, reap trillions of dollars and face only modest constraints, the deterrent effect evaporates. The message to other companies is plain: It pays to break the law.
At a time when authoritarian power is on the rise, we must not forget that plutocracy is also its own kind of dictatorship. That is the danger when we fail to enforce antitrust laws with clarity and conviction — that enormous concentrations of wealth will have too much influence over our lives. Antitrust is not just about prices or products; it is also about ensuring that people can shape their own futures.
Likewise, public faith in our economic system depends on the preservation of open and competitive markets. The public’s trust in the wisdom of markets is fraying. Properly enforced, the antitrust laws can help restore it.
For all these reasons, the Justice Department and the state attorneys general should appeal Tuesday’s ruling. A stronger remedy is needed to match the gravity of Google’s violations, to help restore trust in markets and to demonstrate that the rule of law applies equally to the wealthiest and most powerful corporations.
It is important to fix the problem as soon as possible. Tuesday’s failure to hold Google fully accountable compounds an earlier misstep — the Federal Trade Commission’s decision in 2013 to walk away from its investigation into the very same conduct by Google. What registers as a slap on the wrist today might have been a decisive and meaningful punishment a decade ago, preserving greater competition. The longer we let problems fester, the worse they get, the more difficult they are to solve, and the more people lose faith in our systems and institutions.
Notwithstanding Tuesday’s setback, Google would be unwise to declare victory just yet. The game isn’t over. One of the other trials the company lost over the past year was a major federal antitrust case concerning its advertising business; later this month a federal court in Virginia will begin to decide whether Google’s ad system should be broken up.
That’s another wide-open shot. My advice: Shoot the damn puck.
Jonathan Kanter was the assistant attorney general for the antitrust division at the Department of Justice from 2021 to 2024.
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