Google could potentially leverage its Gemini app to use generative artificial intelligence to return search results, thereby circumventing any remedies a court may impose to stop its illegal agreements that place Google Search as a default service on phones and browsers, an economic expert for the US Department of Justice testified today. US District Judge Amit Mehta also heard testimony from a senior Google executive who works in cybersecurity about the risks involved in divesting the Chrome browser, considering there are “bad actors” who are engaged in “espionage or sabotage” and use cyber techniques to inflict harm.
Google could potentially leverage its Gemini app to use generative artificial intelligence to return search results, thereby circumventing any remedies a court may impose to stop its illegal agreements that place Google Search as a default service on phones and browsers, an economic expert for the US Department of Justice testified today.US District Judge Amit Mehta also heard testimony from a senior Google executive who works in cybersecurity about the risks involved in divesting the Chrome browser, considering there are “bad actors” who are engaged in “espionage or sabotage” and use cyber techniques to inflict harm.
Tasneem Chipty took the stand as a government witness in an evidentiary hearing where the DOJ and a coalition of states are seeking to engineer a corporate split of the search giant in response to years-long illegal monopolization of the Internet search and search text ads market.
Chipty, who was on the stand for roughly five hours, faced a rough cross-examination by Google attorney John Schmidtlein. At one point, the argumentative nature of the cross-examination led Mehta to step in and ask the Google lawyer to tone things down.
The DOJ expert was tasked with assessing how the proposed remedies by the government would change economic incentives for rivals to enter the Internet search market. She was also tasked with assessing whether the government’s proposed remedies, compared with Google’s proposed remedies, would be capable of restoring competition in the market for search and search advertising.
The US Department of Justice and a multistate coalition led by Colorado are seeking the forced sale of the Chrome browser and several behavioral remedies after a Washington, DC, federal judge found last August that Google illegally monopolized the Internet-search market and search text-ads market. They also seek data-sharing and ads-syndication remedies, as well as the contingent divestiture of the Android operating system.
The expert concluded the government’s proposed remedies would introduce competitive rivalry while Google’s counterproposal would preserve the status quo.
Today, Chipty was grilled about her findings and an illustration in which she showed an example of how a Google Gemini widget might replace a Google search widget. The DOJ expert said it promotes an idea that if Google is able to distribute Google Search through its Gemini app without restrictions on payments for preinstallation, then it's possible Google could still secure search access points in the future.
“The point of this exercise was to look ahead and ask and if the Gemini app, or a future version of it, is a search access point. Then Google could distribute its search engine through this search access point,” she said.
“Are you offering the opinion that Google is going to turn the Gemini app into the Google app?” Schmidtlein asked.
“I'm not offering an opinion on what Google will or will not actually do,” Chipty replied.
“The point is GenAI apps are increasingly able to return search results today. If in the future, a Gemini app is able to serve as a useful and important search access point, this could, in principle, provide a circumvention to the pre-installation" ban sought by the government, she said.
Schmidtlein then asked if the Gemini app is already a significant search access point today.
The DOJ expert said she hasn’t assessed that.
“But the point isn't about today,” Chipty said. “The point is about what might happen in the future if Google has fewer ways to secure users. So, you could imagine that Google will look for alternative ways that it doesn't utilize today. The question is not what it's doing today, but what it might do in future if circumstances change.”
— Chicken-and-egg-problem —
Earlier in her testimony, the government expert talked about the "chicken-and-egg problem" whereby a company needs to have a high-quality search engine to obtain distribution. Should the company be unable to secure distribution, it becomes a lot harder to achieve user scale.
During cross-examination, the Google lawyer quizzed Chipty about this, asking: "In the period before the alleged unlawful conduct began here, Google had the highest quality search engine, right? And it had scale advantages prior to any alleged wrongdoing, right?"
"Yes, I believe it did," Chipty said.
"So, the chicken-and-the-egg problem existed before any of the alleged unlawful conduct. Correct?"
"Yes, and I testified to that," the expert witness said. "The point is it was always going to take time, and it will take even more time now [for rivals to scale up]. But the point is the structure of Google's agreements foreclose the opportunity for rivals to come in and start chipping away at niche defaults, at minor access points... in ways that would have accumulated."
Schmidtlein inquired if Chipty can list out any minor access points on the Safari browser that rivals "could have chipped away at."
"Well, that's the whole point. These all-or-nothing agreements precluded the possibility of alternative configurations on some models, in certain ways that never came to the market. So, I don't think anyone sitting here can go back and think about the different types of products that might have come to market," the DOJ expert said.
Schmidtlein persisted, asking Chipty if she reviewed the testimony from Apple's executives and the smartphone maker's internal documents to see whether there were any other types of niche access points that were being considered at Apple but were shelved because of Google's agreements with Apple.
Chipty said there was a discussion about investing in privacy mode.
Schmidtlein said Apple introduced a private browsing default feature in Safari notwithstanding the existence of Google's contracts, which was developed as recently as September 2023. Chipty countered that it still features Google's privacy product.
"Have you seen any evidence that that feature would have come sooner, absent Google's contract?" Schmidtlein asked.
"Well, this is the thing. We can't know now, can we?" Chipty said.
This portion of Google's cross-examination prompted the judge to step in, and he asked Schmidtlein to "just avoid that kind of argument and back-and-forth" because Chipty is really not in the position to testify about some market dynamics.
"I understand, Your Honor, but I know you appreciate I have a record to make," Schmidtlein replied.
The judge however cut him short, saying: "It's not just about making a record. I understand all of that. It's also who's going to give me the information."
"Ultimately, we're all going to have a long discussion about the extent of these remedies and what's appropriate, and for her to stand here and not tell us anything terribly helpful to that, because she's not in a position to...she's accomplished [but] she's not a technical person," the judge told Schmidtlein.
— Foreign cyber threats —
The DOJ rested today, having called 17 witnesses over seven days. Google began presenting its case-in-chief.
Heather Adkins, vice president of security engineering and head of Google's Office of Cybersecurity Resilience, was Google’s second witness. The tech giant’s first witness was Parisa Tabriz, head of the Chrome team, who was an adverse witness on the DOJ’s list last week.
Gloria Maier, counsel for Google, quizzed Adkins about how divesting Chrome from Google could affect the security of the Chromium open-source software.
The Google executive said the scenario she is “most worried” about is the SolarWinds instance in which the US company of about 2,000 people was compromised by Russian intelligence in September 2019. SolarWinds was compromised for about two years, undetected.
The company makes network monitoring software, with that software used by customers to install on their own systems.
Adkins said the Russians came in, and during the build process for the software, inserted a back door that would give them access to whoever ran the software. That back door was then pushed out, and if a customer did the update, the customer got the back door that led to the compromise of companies in the US and several US government agencies, she said.
“So, the scenario I worry about with the divestiture of Chrome is, would the receiving party be able to protect it?” the Google executive asked. “You're not just buying software and you're not just buying the users. You are buying the responsibility to protect the installs on 4 billion machines.”
“If you think about the things we've had to do to defend Chrome and some of the practices that we see generally in the industry, I worry whether they stand a chance in that defender's dilemma…. If they don't have the resources, the talent, the culture and the technology to really defend that at scale,” Adkins said.
Maier asked about security capabilities that Chrome would not be able to take advantage of if it was divested.
There is a whole infrastructure stack, which Google spent a decade innovating and building, the executive said.
During cross-examination by DOJ attorney Veronica Onyema, Adkins was asked if she was aware that the government’s proposed remedies also specify that the US will evaluate any potential risks to national security stemming from the Chrome divestiture.
“I'm not sure I read that specific part,” the Google executive replied.
Onyema also established during her cross exam that it's “nearly impossible” for Adkins, who has been with Google since 2002, to verify the people, processes and technologies of another company who might end up purchasing Chrome if the court orders a divestiture.
“It's fair to say I don't have an insider access to look at all their controls and see bit by bit,” Adkins said.
Onyema refreshed the witness’ memory that in March 2018, Google discovered a bug in its Google+ social network that gave outside developers access to private user data, including 5 million leaked account passwords. Adkins said she was not aware of a breach.
Earlier in her testimony, Adkins warned of “government bad actors” to warn against hiving Chrome off.
“Think James Bond in a uniform. A hacker who is working on behalf of a nation-state, with nation-state goals in mind, maybe espionage or sabotage, who is using cyber techniques to carry that out,” she said. “The big actors in this venue are typically, China, Russia, Iran, North Korea.”
The courtroom was sealed for a small portion of Adkins' testimony, prompting press objections with the judge, who ruled afterward that sealing was necessary to prevent the information being revealed from creating "vulnerabilities" for Google.
Sundar Pichai, Google’s chief executive officer, will testify tomorrow.
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