DOJ Disagreement Arises Over Possible Google Lawsuit

The Justice Department has been moving toward bringing an antitrust lawsuit against Google as soon as this summer.

Photo: David Paul Morris/Bloomberg News

WASHINGTON—Some Justice Department staffers have expressed internal concerns over plans to bring an antitrust lawsuit against Alphabet Inc.’s GOOG 0.68% Google—and what they view as an aggressive timeline favored by Attorney General William Barr, according to people familiar with the matter.

The department has been moving toward bringing a lawsuit as soon as this summer, but some lawyers involved in the yearlong investigation have expressed a belief that the department doesn’t have a camera-ready case right now and needs more time to consider whether the millions of pages of documents in the government’s possession yield the kind of evidence needed to win in court, the people said.

Dozens of government antitrust lawyers are on teams investigating whether the search giant has used its dominance to stifle competition. One group is focused on Google’s search practices, and some of its members have voiced the belief that there are vulnerabilities in a case built around those issues, people familiar with the matter said. Details about the Justice Department’s legal theories couldn’t be learned.

Another team is examining Google’s online advertising business, where the company owns industry-leading tools at every link in the complex chain between online publishers and advertisers. Some attorneys working on that aspect of the probe aren’t ready to move forward because they are still untangling the new and complex issues raised by that part of Google’s business and how it affects the many companies in the digital ecosystem, the people said.

A senior Justice Department official said harm to innovation and nascent competition in fast-moving technology markets can happen quickly. The department has a duty to act expeditiously to determine if antitrust violations have been committed and, if so, to address them, the official said.

As the department’s leader, Mr. Barr, aided by his top lieutenants, will make the final decision on whether and when to sue Google.

“Things are moving along to my satisfaction in terms of the timing. I’m hoping to make a decision by the end of the summer,” Mr. Barr said in an interview last week, when asked about Google.

“While we continue to engage with ongoing investigations, our focus is firmly on providing free services that help people every day, lower costs for small businesses, and enable increased choice and competition,” a Google spokeswoman said.

Because the advertising piece of the investigation is moving more slowly, it is possible the department could file any antitrust case in two parts, the first alleging Google is harming competition by how it runs its search business, with advertising-related allegations added later.

There are a range of views among staff about a Google case, people familiar with the deliberations said. Some Justice Department lawyers believe Google’s conduct isn’t blameless, but they don’t want to bring a once-in-a-generation lawsuit with flaws and lose in court, the people said.

Some staffers also are concerned that top officials overseeing the probe might be feeling pressure to get a lawsuit filed before the election, the people said.

Wall Street Journal publisher News Corp is a longtime Google critic and is among a group of publishers that have been contacted by antitrust investigators.

The Justice Department for months has been preparing for a likely lawsuit, The Wall Street Journal has reported.

Google has been under the antitrust microscope for a decade. The Federal Trade Commission, which shares antitrust authority with the Justice Department, spent more than a year investigating Google but decided in 2013 not to bring a case. Some FTC staffers in that case raised several concerns about Google’s conduct, but the commission said the evidence on balance didn’t warrant a case.

While the U.S. hasn’t taken action, antitrust enforcers in the European Union have brought three cases against Google, with fines totaling more than $9 billion.

Epic Games Inc., creator of the videogame “Fortnite,” last week filed private antitrust lawsuits against Google and Apple Inc. over their rules for selling mobile apps.

State attorneys general, both Republicans and Democrats, also are investigating Google. And the company has been criticized by both parties on Capitol Hill, including during a July 29 hearing in which Google Chief Executive Sundar Pichai and other top tech CEOs testified.

While lawmakers have been bipartisan in criticizing Google as having too much power online, Republicans have a longer list of grievances, some of which go beyond concerns about competition and are focused instead on allegations the company is biased against conservatives.

Mr. Barr has questioned whether dominant platforms like Google are too powerful and have wielded their muscle to stifle the growth of rivals. At times he has gone further, including in a Fox News interview in June in which he suggested that dominant tech companies were a threat to silence conservative voices.

“One way this can be addressed is through the antitrust laws and challenging companies that engage in monopolistic practices,” Mr. Barr said.

Those remarks made even some Google critics uneasy.

The senior Justice Department official said the antitrust investigation is premised on traditional principles and a long-standing legal standard that focuses on consumer welfare.

Many additional concerns have been raised about the major tech platforms, including alleged political censorship, online crime and broad platform immunity under federal law, which the department is exploring separately as part of its broader review of the tech space, the official said.

Any case against Google will likely take years to resolve, meaning the final direction of any legal challenge will be controlled by the next presidential administration.

Write to Brent Kendall at [email protected]

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