Google Hit in Court with Accusations of Unfair Search Engine Competition

WASHINGTON -- Search engine giant Google endured accusations Tuesday in federal court in Washington, D.C., that it unfairly squeezed out competition through contracts that were similar to ultimatums.

The contracts with computer and smartphone makers sometimes required them to use Google as their default search engine or lose out on potentially huge amounts of shared ad revenue.

Google’s parent company, Alphabet Inc., is valued at $1.72 trillion, according to its Securities and Exchange Commission filings. The company controls about 90 percent of the internet search engine market.

Justice Department attorneys say the company violated antitrust laws to achieve its rise to riches.

The civil trial is expected to last about 10 weeks. The outcome is likely to determine whether Google retains its predominance as the world’s largest internet search engine.

“Google’s contracts ensure that rivals cannot match the search quality ad monetization, especially on phones,” Justice Department attorney Kenneth Dintzer said during his opening statement Tuesday. “Through this feedback loop, this wheel has been turning for more than 12 years. It always turns to Google’s advantage.”

Google’s contracts have won it a place as the default search engine on major internet platforms like Yahoo, Safari and Mozilla Firefox. Its competitors had no meaningful method to win the same internet placement, the Justice Department argues.

“Your honor, this is a monopolist flexing,” Dinzer said.

In one example, Dinzer said Google threatened to withhold revenue from Apple Inc. unless it gave “default placement” on all the computer and smartphone maker’s devices. The contract also prohibited Apple from redirecting searches to its Siri voice-activated assistant.

Google reportedly pays Apple about $15 billion a year to ensure its search engine is the default option on Apple devices.

Google’s attorneys argue the company’s contracts benefit its business partners by giving their mutual customers quick access to a sophisticated search engine.

In some cases, preloaded Google apps on Android smartphones increase consumer options by competing with Apple’s iOS operating system, according to Google.

"Users today have more search options and more ways to access information online than ever before," said Google attorney John Schmidtlein.

The other options are "a few easy clicks" away if consumers choose to replace the Google app on their devices with Microsoft's Bing, Yahoo or other search engines, he said.

The Justice Department’s antitrust complaint is being joined by a separate lawsuit filed against Google by 40 states.

The states make similar arguments by saying Google rigs its search results to direct users to its own products but gives competitors a lower placement. The result is consumers miss out on the best deals, according to the lawsuit.

The trial before U.S. District Court Amit Mehta is being done in two parts. The first part will determine whether Google violated antitrust laws.

In the second part, the judge will order remedial measures if there was an antitrust violation. They could include paying a fine or an order to stop the business practices that represented unfair competition.

A larger issue is what the case likely means for the future of the internet and Big Tech generally. Some members of Congress have been calling for more regulation of Google, online retailer Amazon.com Inc. and social media companies Meta Platforms Inc. and X Corp. formerly known as Twitter.

Previous Big Tech antitrust trials put big dents in the business of software company Microsoft Corp. in 1998 and AT&T Inc. in 1974. The AT&T breakup led to the cell phone industry. The Microsoft antitrust lawsuit paved the way for search engines like Google to enter the market.

A ruling in the Google case is expected early next year.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Appeals Court Revives Psychologists’ Lawsuit

After They Were Accused of Helping in Torture

The District of Columbia Court of Appeals last week revived a defamation lawsuit by retired military psychologists who claimed they were inaccurately accused of encouraging torture during the U.S. war on terrorism.

The ruling also represents a setback for local laws found nationwide intended to get rid of frivolous lawsuits designed to intimidate the persons being sued.

The psychologists sued the law firm of Sidley Austin after being named in the “Hoffman report,” which listed psychologists who it said colluded with the government to develop guidelines for the military to interrogate prisoners.

The Hoffman report is named after Sidley Austin partner David Hoffman. The American Psychological Association commissioned the report.

The report said the psychologists developed "loose, high-level ethical guidelines" for interrogating detainees after the Sept. 11 attacks. They allegedly advanced a Bush administration policy authorizing "enhanced" interrogation techniques, such as waterboarding and prolonged stress positions.

Human rights advocates call the techniques torture.

The 2015 Hoffman report identified psychologists Morgan Banks and Debra Dunivin as "key players" in a task force organized by the American Psychological Association to develop interrogation guidelines that would? "produce an outcome that would please DoD."

Sidley Austin said the report was based on interviews with 150 witnesses and a review of about 50,000 documents. The firm has refused to back down from the report.

Banks and Dunivin, along with fellow task force member Larry James, sued Sidley Austin in 2017 in District of Columbia Superior Court. They argued that rather than encouraging torture, they tried to stop it.

After the Hoffman report, they said in their lawsuit they were subjected to “renewed and ongoing calls” for criminal prosecution.

A D.C. Superior Court judge dismissed the lawsuit, citing the District’s Anti-SLAPP Act.

SLAPP is an acronym for “Strategic Lawsuits Against Public Participation,” also sometimes known as intimidation lawsuits. Plaintiffs sometimes file the lawsuits to intimidate or silence critics by burdening them with legal defense costs or making it difficult for them to operate until the litigation is resolved.

The plaintiffs accomplish their goal when the defendants give up, normally by settling the lawsuit.

The Anti-SLAPP Act authorizes courts to dismiss the lawsuits as soon as the evidence indicates intimidation is a primary motive of the plaintiffs.

In reviving the lawsuit last week, the D.C. Court of Appeals said the law oversteps the authority of the D.C. Council that approved it by interfering with constitutional rights to procedural due process, The judge cut the fact-finding, or discovery, phase of pretrial proceedings too short before dismissing the lawsuit, the appellate court said.

Washington, D.C.'s Anti-SLAPP law says "[a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest."

The “advocacy” and “public interest” in this case was the Hoffman report.

The trial court should have more closely followed the Federal Rules of Civil Procedure rather than deferring to the local Anti-SLAPP Act, the three-judge appeals court’s opinion said.

The appellate court did not rule on the defamation claims of the psychologists, instead ordering that their lawsuit can continue.

Besides the District of Columbia, 32 states have enacted Anti-SLAPP laws.

The case is Banks et al. v. Hoffman et al. in the District of Columbia Court of Appeals.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Maryland Law Against Sexual Abuse

Threatens Trouble for Catholic Church

A Maryland law that waives the statute of limitations for child sexual abuse takes effect next month, creating potential legal liabilities for the Catholic Archdioceses of Washington and Baltimore.

For the Washington archdiocese – which includes the Maryland suburbs – the risk results from revelations its former archbishop allegedly molested children.?

For the Baltimore archdiocese, plaintiffs could draw evidence from a Maryland attorney general’s report in April that lists sex abuse allegations against nearly 160 Catholic priests spanning 80 years. It says there were about 600 victims.

None of the cases is more sensational than the allegations against former Cardinal Theodore McCarrick, the first U.S. cardinal to be charged with sexual abuse. He led the Archdiocese of Washington from 2001 t0 2006.

He beat one set of criminal charges last week in Massachusetts when a judge ruled the 93-year-old was incompetent to stand trial. He had been charged with assaulting a 16-year-old boy at a wedding in 1974.

He is scheduled for another pretrial hearing Sept. 18 in Wisconsin after he was accused of groping a then 18-year-old man in 1977. He is charged with fourth-degree sexual assault, a misdemeanor that carries a possible punishment of nine months in jail.

The Vatican removed him from his ministry in 2018 as numerous sexual misconduct accusations surfaced against him.

The Maryland Child Victims Act presents a threat not only for McCarrick but any high-ranking member of the Archdiocese who created vicarious liability by condoning his behavior.

The law approved by the General Assembly in April allows childhood sexual abuse victims to file a civil lawsuit at any time, regardless of how long ago the abuse occurred.

McCarrick was the subject of a 450-page report by the Vatican in 2020 that went into detail to name who knew about his sexual exploits.

As the Oct. 1 deadline approaches to waive the statute of limitations, some victims and their families have joined forces under an advocacy organization called Survivors Unite. They say on their website, “Maryland clergy abuse survivors are uniting to fight for the justice they deserve. It’s time to hold the Catholic Church accountable for what happened to hundreds of victims.”

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

D.C. Prosecutors Begin Charging

More Juveniles as Adults

Prosecutors in the District of Columbia are whipping up political controversy over their latest crime fighting effort that focuses on trying more 16 and 17-year-olds as adults.

With juvenile crime at the highest levels in decades, they say they have few better options.

Robberies in Washington are 67 percent higher this year compared with this time in 2022, according to police data. Carjackings are up 102 percent.

Matthew Graves, U.S. attorney for the District of Columbia, announced at a press conference late last month that he told prosecutors in his office to “strongly consider” charging 16 and 17-year-olds as adults if they are arrested for multiple robberies.

He made the announcement while discussing details of a D.C.-based robbery ring that allegedly used stolen vehicles to rob Asian American-owned jewelry stores along the East Coast of hundreds of thousands of dollars in merchandise.

Although the robbery ring did not consist of juveniles, their style of carjackings was similar to the recent spike in youth crime in Washington, he said.

“A majority of the individuals arrested for robberies and a supermajority of the individuals arrested for carjackings are juveniles,” Graves said at the Aug. 30 press conference.

A policy of charging juveniles as adults runs into criticism from child advocates who question whether prosecuting underage juveniles is punishing them for bad upbringings that led them into crime and violence.

"Some prosecutors want to say that children who commit certain crimes become adults and are no longer eligible for rehabilitation,” said Penelope Spain, chief executive officer of the youth advocacy organization Open City Advocates. “But that's just developmentally false, and those are precisely the children who most need our community's support.”

Some child psychologists and the U.S. Supreme Court say juveniles should not have the same liability as adults because their brains are not developed enough for them to understand the gravity of their actions.

“What's more, our community will benefit most in public safety terms by doing this right,” Spain said. “It's better to provide rehabilitative services through the juvenile system than mere punishment through the adult system."

Nevertheless, Graves’ announcement is consistent with D.C. Council policy. The Council recently approved emergency legislation that expands pretrial detention for juveniles accused of some crimes.

In a related move, the Council approved a curfew for juveniles in seven target areas with crime problems, such as Chinatown and the U Street corridor. Police started enforcing the pilot curfew program Sept. 1.

The curfew authorizes police to take juveniles less than 17 years old to the Department of Youth and Rehabilitation Services until they are reunited with a parent or guardian. The curfew runs Sunday through Thursday from 11 p.m. to 6 a.m. and Friday through Sunday from midnight to 6 a.m.?

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Artificial Intelligence Competition

Risks Asian Civil Rights Violations

A Senate committee’s consideration last week of proposals to encourage development of artificial intelligence raised concerns about potential civil rights violations against Asians during U.S. competition with China.

Artificial intelligence (AI) refers to the ability of machines to perform tasks typically done through human intelligence, such as learning and problem-solving.

It is used by online search engines, such as Google, Amazon and YouTube. It also is the key component for apps like Alexa and Siri to understand human speech and the navigational force behind self-driving cars.

Lawmakers at the Senate Energy and Natural Resources Committee discussed proposals that could add trillions of dollars to the U.S. economy but also posed national security risks, particularly from China.

China plans to spend $26 billion on the technology before the end of this decade. A significant part of it is directed at improving Chinese military capabilities.

“There is no doubt we are now on the cusp of our next grand challenge here in the United States,” said David M. Turk, the Energy Department’s deputy secretary.

He described the challenge as an effort to capitalize on enormous economic and scientific advantages of artificial intelligence while controlling the risks. Among the risks is abuse of the technology by law enforcement agencies to eavesdrop, which could include targeting Asians suspected of being Chinese spies.

“There’s no room for xenophobia or ethnic profiling in the U.S.,” said Anna B. Puglisi, a senior fellow at Georgetown University’s Center for Security and Emerging Technology.

Sen. Mazie Hirono, D-Hawaii, cautioned that vigilance to protect against Chinese spying could spill over into human rights violations by the Justice Department.

“It’s the Chinese government, not the Chinese people,” Hirono said.

She warned against a return to the China Initiative, a Trump administration program carried out by the Justice Department to find and prosecute Chinese spies.

Launched in November 2018, the China Initiative was criticized as racially biased and ineffective. Some of the cases prosecuted were based on false evidence provided by the FBI. The Department of Justice ended the program on Feb. 23, 2022, amid criticism of racial profiling of Chinese Americans and other residents of Chinese origin or ancestry.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.