Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC files amicus brief in support of Justice Department’s proposed judgment in Google search case, (May 12, 2025)

By Jody Coultas, J.D.

The FTC described the ways in which the proposed final judgment is consistent with the Commission’s own privacy and data security orders. Apple, Union also filed briefs.

The FTC has filed an amicus brief in support of the Department of Justice’s Revised Proposed Final Judgment (RPFJ) related to Google’s antitrust violations. In August 2024, a federal judge found that Google violated the Sherman Act by maintaining monopolies in general search services and general text advertising. The Justice Department has proposed that Google be required to share targeted portions of its search index, user, and ads data with certain competitors for a limited period of time with suitable security and privacy safeguards. The FTC contends that the RPFJ is consistent with its own privacy and data security orders. In addition to the FTC brief, Apple and a union that represents Google workers also filed amicus briefs in response. (U.S. v. Google LLC, No. 1:20-cv-03010-APM (D.D.C. May 12, 2025)).

In 2024, the federal district court in Washington, D.C. found that Google used its exclusive distribution agreements with major browser developers, Android device makers, and wireless carriers to maintain its monopoly power in the markets for general search services and general search text advertising in violation of Sec. 2 of the Sherman Act. Despite the finding in favor of the government, the court rejected some of the claims raised against Google. The court concluded that: (1) while there was a product market for search advertising, Google lacked monopoly power in that market for purposes of Sec. 2; (2) there was no product market for general search advertising; and (3) in claims advanced by the state plaintiffs alone, Google was not liable for its actions involving its proprietary online advertising platform SA360, which allows advertisers to purchase digital advertisements across multiple platforms.

In March 2025, the Department of Justice and a bi-partisan group of states filed their revised proposed final judgment (RPFJ), replaces their initial proposed final judgment (IPFJ), which was filed before President Trump took office. The government maintained the RPFJ will “pry open the markets that Google unlawfully monopolized for more than a decade” while further thwarting Google circumvention of remedies. The government maintained its position that Google must divest its Chrome browser, a “critical search access point” and conduit for around 30 percent of all Google search engine (GSE) inquiries. However, the government dropped mandatory divestiture of Google’s artificial intelligence (AI) investments “in favor of a prior notification for future investments.”

FTC brief. The RPFJ would require Google to make available “User-side Data” to “Qualified Competitors.” “User-side Data” includes, among other things, “all data that can be obtained from users in the United States, directly through a search engine’s interaction with the user’s Device, including software running on that Device, by automated means.” Given the scope of this proposed data sharing, privacy considerations are critically important. The RPFJ accounts for these considerations by including terms that are consistent with those that the Commission includes in its own privacy and data security orders, the FTC said.

The RPFJ contemplates an independent, expert technical committee to help ensure that Google and qualified competitors protect consumers’ privacy. The RPFJ allows Google to use “anonymization or privacy-enhancing technique[s]” to help protect consumers’ privacy. Permitting Google to use these tools, with oversight by the TC, provides an additional avenue for protecting users’ privacy, said the FTC. Further, the RPFJ charges the technical committee with determining that appropriate safeguards, such as data anonymization and PETs, are “fully functional.” This is a clear directive: The committee should ensure that deidentification techniques and PETs are properly applied. This requirement reduces the risk of the misapplication of this technology and violations of consumers’ privacy by both Google and any Qualified Competitor, consistent with other privacy and data security matters before the Commission.

Also, the brief noted Google’s questionable track record related to privacy. Google’s past lapses and failures to protect its users’ privacy demonstrate both that independent technical committee oversight of Google’s privacy obligations is important and that Google should not be uncritically presumed to have better privacy and data security practices than Qualified Competitors that would receive User-side Data—subject to technical committee oversight—under the RPFJ. Google has entered into three separate consent agreements with the FTC since 2011 over alleged privacy violations.

The RPFJ’s requirement that Google share targeted portions of its search index would foster competition that benefits consumers, according to the FTC. Because of Google’s monopoly power in general search services and general search text ads, the FTC argued Google has been insulated from the pressures to compete for users on the basis of its privacy policies and protections. This lack of competition has resulted in users having little choice but to accept whatever level of privacy Google chooses to provide. Remedies like the RPFJ that are designed to revive competition in general search services and general search text ads would create the incentive for Google and other market participants to compete on privacy and data protection, driving higher quality protection market-wide.

The Commission vote authorizing the amicus brief was 1-0-2, with Commissioners Melissa Holyoak and Mark R. Meador recused. Commissioner Holyoak is recused from participating in this matter due to her previous work as Utah’s Solicitor General, where she led Utah’s involvement in the litigation against Google.

Apple brief. Apple’s amicus brief asserts that there are provisions of the RPFJ that would help bolster competition and accelerate exciting changes in the search market, but others would hamper progress and entrench Google’s position. According to Apple, sharing Google Search index data with new AI companies would—taken in conjunction with their revolutionary large language models (“LLMs”)—help accelerate their ability to compete. However, Apple was particularly concerned about a total prohibition on Apple’s ability to receive compensation for non-exclusive distribution of Google Search. The RPFJ would prohibit Apple from receiving “anything of value” for distributing Google Search, whether as the default or, for instance, via a choice screen where Google is presented alongside its competitors on an equal basis. This would constrain Apple in a way that would undoubtedly harm competition. Apple argued that the court should order targeted, effective remedies that avoid needlessly harming third-parties like Apple’s users and Apple itself. By allowing Google to pay and compete for nonexclusive distribution of Google Search—even if it is prohibited from contracting for out-of-the-box default status—this Court can both avoid affording Google a significant financial benefit and allow Apple to receive value for providing a significant service.

Alphabet brief. Alphabet Workers Union-CWA is a minority union engaged in organizing workers at Alphabet Inc., Google, and vendors providing contract labor to the company. The AWU-CWA argued that the Final Judgment should strengthen, not weaken, the ability of Google’s workers to engage in concerted action, enforce Google’s compliance, and prevent future anticompetitive conduct. Accordingly, AWU-CWA requested that the court issue a Final Judgment that: (1) includes provisions to protect whistleblowers and provide training for all Google workers, comprehensive anti-retaliation protections for all Google workers, and provisions that foster a compliance culture so that Google’s workers can speak freely about working conditions, violations of the Final Judgment, and potential antitrust violations; (2) takes into account the benefits a union like AWU-CWA and its members may provide in the ongoing monitoring of Google’s conduct so as to effectuate the relief in the Final Judgment and restore a culture of compliance at Google; and (3) provides worker protections in the event a divestiture is ordered so as to protect against the elimination of good jobs, reduction in benefits, and reduction in worker bargaining power.

Attorneys: Michael Glenn McLellan, U.S. Department of Justice, for the U.S. Amanda J. Wentz, Office of the Attorney General, for State of Arkansas. R. S. Palmer, Office of the Attorney General, for State of Florida. John E. Schmidtlein (Williams & Connolly LLP) for Google LLC. Brandon Kressin (KRESSIN POWERS LLC) for Y Combinator, LLC.

Companies: Google, LLC; Alphabet Inc.; Apple Inc.

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