A draft executive order from the White House complaining about bias in social media said the proposed order commands federal agencies to “thoroughly investigate whether any online platform has acted in violation of the antitrust laws.”  The leaked White House document is more about allegations of bias against President Trump than it is about antitrust issues.

This all comes as Germany announced it would launch antitrust investigations of Google this year.

Allegations of Google’s monopoly power are generally right, but the correct issue is whether Google abuses its power.  In the U.S. ,Google has a 64% market share on desk and laptop search, or more, depending on the source.  Google has a 93% share in mobile device search.   The market shares are almost identical in Germany.  German search operators have de minimis shares, and that presumably explains much of Germany’s annoyance.

A second platform in which Google has dominance is the operating system for the Samsung mobile phones, where Google’s Android operating system holds an 88% share.  Android is an open source product and has a few commercial competitors.  The EU fined Google $5 billion in 2018 for forcing manufacturers to take a bundle of Chrome and Google Search with its Android product.  The fine seems small for the crime.

The larger persisting problem that Google causes stems from the data it owns which is “unmatched by any other entity.” Over time, some of Google’s data could be matched, e.g. “civic data on public services, infrastructure, roads and resources”, as could Google’s lead on “books, music, film, news” if competitors invest enough.  However, Google has massive quantities of personal information (tracking, browsing, and purchases) collected by Google’s software under a highly self-indulgent reading of its consumers’ “informed consent.”  That personal data gives Google dominance in advertising sales.

Data is key, because Google, at the fundamental level of its business, transacts in directly identifiable consumer data. Google knows so much about billions of consumers because of their core product, their search engine.  Google has been capturing and storing personal data for years, and personal data is the foundation for Google’s abuse of its monopoly power. The legitimacy of its “informed consent” must be assured before any antitrust probe.

Recently Google told advertisers “that they could no longer have access to the DoubleClick ID to analyze ad measurement data across the web.  The data is highly valuable because it allows marketers to see how ads are performing on Google sites, including YouTube, compared with the rest of the web.  For example, an advertiser could see that, based on a user ID, a particular person was on YouTube and a number of different sites, and could tell where promotions were working and where they were falling flat.”

Although Google announced discontinuing client access to some personally identifiable data, Google retains the personal data, presumably will collect more of it, and will create profitable ways to exploit that data.

If the White House Executive Order threat or Germany’s threat to launch antitrust probes of Google are serious, the probes should proceed in stages: first, validate Google’s proper treatment of consumer privacy; second, focus on whether Google obtained its monopoly power legitimately (e.g. not through abuse of consumer privacy); and third, determine if Google abuses its monopoly power.

As Congress holds a series of privacy issue and considering imposing rules on the broader industry, it needs to identify where market power is being exercise, prevent anticompetitive abuses, and then develop consistent rules for all players in the Internet ecosystem.