For the sake of user privacy, keep Google search remedies narrow and germane

The movement in the Biden and Trump administrations of antitrust officials away from consumer welfare and towards a federal judiciary of active regulation is on full display in the Google search trial. The remedies sought by the current Department of Justice (DOJ) are an unprecedented and unwise ceding of critical business decisions to unelected officials and the judiciary. If imposed, users’ privacy may take the biggest hit.

Earlier this year, a US District Court found Google guilty of illegally maintaining its monopoly in search by contracting with phone manufacturers, browser companies, and others to make Google search the default tool on their products. Google plans to appeal that decision, but a remedies trial moved ahead. 

Among the DOJ’s proposed remedies is a far-reaching requirement that Google share vast troves of behavioral data, including billions of user queries, clicks, and refinements, with “qualified competitors.” This information contains what we search for, what we read about, what we buy, and may even hint about what opinions and beliefs we hold. The idea that users trust Google with that information, but not necessarily everyone the government forces Google to share that information with, raises important questions about consumer empowerment. 

If mishandled, that data could be used to identify individuals and expose very personal aspects of their lives. With the data sharing remedy request, the DOJ is asking a federal court to make high-stakes policy choices that implicate civil liberties, user trust, and the architecture of the digital economy.

Worryingly, the DOJ’s proposal includes no binding privacy standards, no oversight mechanisms, and no criteria for who will qualify to access and use this data. Rather than articulate to the court for its careful consideration how such an unprecedented intrusion into Americans’ privacy should be managed, the government instead proposes to pass this question off to a “technical committee” composed of five unnamed, unelected bureaucrats who, it claims, will safeguard the data of billions of people.

That is a decidedly undemocratic and opaque approach to privacy policy. It is separate and apart from Congress acting to legislate new data and privacy laws. It also lacks input from small businesses that rely on Google’s tools, even though changes to the platform’s privacy architecture could affect how those smaller companies operate and connect with users. Most critically, users aren’t being consulted about whether they want their search data shared with third parties. The consumer is king in the marketplace, but his interests are considerably less well represented in this remedies trial.

The court’s role is to apply laws, not to write new ones. Here’s hoping the remedies address the findings in the trials – namely, the contracts for default placement – and stop short of rewriting the rules of digital road from the bench.