Since Google has a right to protect its trade secrets during the US Department of Justice’s trial digging into how the tech giant allegedly monopolized Internet searches, some of the trial’s most revealing moments will come during sealed testimony closed to the public.
On Monday, that process of keeping Google’s secrets began with the court sealing off two hours of testimony from Verizon executive Brian Higgins, Reuters reported. Higgins had been called in to discuss how Verizon “always” pre-installed Google’s Chrome browser with Google search on its mobile phones. The public was able to hear 30 minutes of testimony before they were removed from the court.
But it looks like the DOJ doesn’t plan to sit back and let Google seal off all the testimony it wants. Today, the DOJ objected when the court removed the public during discussions of Google’s online advertising pricing, Reuters reported, pushing back against what Google considers privileged information.
At the trial, the DOJ’s senior trial counsel, David Dahlquist, also pointed to documents where Google was redacting information about search advertising pricing as problematic. To the DOJ, every piece of information that Google hides from the public eye risks weakening the public’s understanding of the case that the DOJ is building against Google.
Take this example from the DOJ’s pre-trial brief. Supporting the conclusion that Google is a monopolist,” the DOJ said that its accounting expert Christine Hammer will testify “that Google turns an exceptionally high profit margin”—[redacted] percent—”on its search and search advertising businesses.” Without knowing the profit margin precisely, the concern is that it might be difficult for the public to come to the same conclusion as the DOJ does about whether those margins are “exceptionally high” and that might make a difference in how the public views Google’s alleged monopolistic behaviors.
And more information will likely be revealed in sealed testimony. Reuters reported that it’s possible that Higgins “was asked about Google’s payments to Verizon” at trial, but now, no matter how much that information might bolster the DOJ’s case, the public will “never know” exactly how much Google paid to ensure its dominance as a search engine empire.
Google’s lawyer, John Schmidtlein, doesn’t believe sealing testimony or redacting information in documents is problematic. He told the court that it was necessary for all discussions of Google’s pricing to be closed to the public, Reuters reported. The lack of detail, the DOJ worries, could help Google persuade the public that it won search dominance by offering a superior product rather than by pricing out competitors or other monopolistic means.
Likely, in Google’s view, Judge Amit Mehta is the only person who needs to review all the facts to determine if the DOJ has a case. And Mehta clearly agreed that the public should be removed for Higgins’ testimony.
That’s unsurprising since Mehta has already appeared sympathetic to Google’s privacy concerns in this case, rejecting a request from the American Economic Liberties Project (AELP) to make audio streams of the trial available, partly because, as Ars previously reported, “the court has serious concerns about the unauthorized recording of portions of the trial, particularly witness testimony.” Mehta said that witness testimony is “particularly sensitive” and must be treated with care “even when those proceedings involved ‘a matter of public interest.’”
AELP’s senior counsel Katherine Van Dyck told Reuters on Monday that Mehta made the wrong call.
When you have these cases with massive, broad public interest and public import, the courts need to do a better job of taking that into account” and “change their rules and keep up with modern technology,” Van Dyck told Reuters.
Before the trial started, Van Dyck released a statement criticizing Mehta’s decision as prioritizing “Google’s privacy over the public’s First Amendment right to listen, in real time, to witnesses that will lay out how Google monopolized search engines.”