Borked, Part II: The Holes in Google's Opposition to Antitrust Enforcement

This morning, we wrote about former Supreme Court nominee Robert Bork’s recent column on the issue of competition in the Internet ecosystem. He is currently a Google adviser.

A simple review of Judge Bork’s 1998 column in the New York Times, “What Antitrust is All About,” calls into serious doubt Bork’s recent flawed analysis in the Chicago Tribune of the case building for enforcement of existing antitrust laws to “create a level playing field benefiting consumers” (as he wrote in 1998) to today’s market for online search and search advertising.

But Bork’s recent defense of Google in the Chicago Tribune does not hold up on the weight of its own faulty logic. He writes that search engines:

“…charge advertising rates based on the usefulness to consumers of the seller’s website and penalizing [sic] sellers whose websites aren’t consumer oriented. There is nothing unfair about this practice. Google clearly distinguishes ads from its unpaid search results generated by algorithms.”

Bork at least implicitly acknowledges that Google practices that result in consumer deception and confusion can create an antitrust problem, as it is important that Google “clearly distinguishes” ads from unpaid search results. But, Google has NOT clearly distinguished hard-coded links to its own products in which it has an economic interest (i.e., the equivalent of a paid search ad) from unpaid search results that flow from the algorithm that does not apply to its own products. Even by Bork’s own standard, Google’s preferential display of its own products through “universal search” poses a problem.

Bork also offered Google’s empty “one click away” defense in his Chicago Tribune column:

“Consumers can switch search engines without cost instantaneously. This is why an argument that a search engine will bias results in favor of its own or sponsored sites makes no economic sense.”

So, if Google is biasing results in favor of preferential display of its own products, it is doing so without justification based on any efficiency or consumer benefit.  As Bork wrote in his 1998 New York Times column:

“When a monopolist employs practices and makes agreements that exclude competitors and does so without the justification that the practices and agreements benefit consumers, the company is guilty, as was The Lorain Journal, of an attempt to monopolize in violation of Section 2 of the Sherman Act.”

Again, under Bork’s own standard, actions taken by a monopolist without justification that block competitors from access to a level playing field do pose an antitrust problem. By Bork’s logic, Google does pose an antitrust problem given the facts that Bork fails to address in his recent defense of Google.

Bork’s defense of Google is flawed at best. He should have stuck to the principle of stare decisis and stayed true to his original writings on the Internet and antitrust.