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Google’s Digital Advertising: A Showcase of Challenge to the Sherman Act Section Two from Big Tech Data Aggregation

Posted by on Monday, January 22, 2024 in Blog Posts.

By Maggie Ren

Today, the currency we use to pay for the services of these tech companies is not money, but instead it is data. [1] Google, a technology giant, has leveraged its data aggregation capabilities and algorithms driven by artificial intelligence (AI) to become a dominant force in digital marketing.[2] Google provides products and services to users in return for valuable personal data, leveraging this information to generate revenue from various channels, particularly through online advertising, where it serves as a competitive currency.[3] The greater the data at Google’s disposal, the more effectively it tailors ads, increasing the chances of user engagement, clicks on ads, and ultimately, product purchases or service subscriptions.

On January 24, 2023, the Department of Justice (DOJ), along with the Attorneys General of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia, jointly filed a civil antitrust suit against Google, alleging that Google engaged in monopolistic practices by “anticompetitive, exclusionary, and unlawful means to eliminate or severely diminish any threat to its dominance over digital advertising technologies,” and thus, in violation of Sections 1 and 2 of the Sherman Act.[4] Prosecutors took an extraordinary step of asking a federal judge to force Google to break up its advertising segment from the rest of the company, because past cases that ended with fines and requirements for Google to stop anti-competitive practices have not worked, allowing the company to continue its behavior.[5]

However, the DOJ’s lawsuit against Google is confronted with legal challenges. In contrast with the drastically changing global economy and society since the beginning of the twenty-first century,[6] antitrust statutes have not been updated since 1976.[7] The Sherman Act is only eight paragraphs, including two types of violations under Section 1 and Section 2.[8]

Sherman Act: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony…. [9]

Additionally, in Ohio v. American Express Co., the Supreme Court held that the plaintiff in the anti-trust case not only has the burden to prove the actual harm to competition on both sides of a multi-sided platform, like with evidence of price increases, but also to define the relevant market where the defendant holds market power.[10] Amex limited its holding to platforms where the two customer groups interact through transactions that occur at the same time for both group, reasoning that two-sided transaction platforms “exhibit more pronounced indirect network effects” and have “interconnected pricing and demand.” [11] But it is highly debated that whether Google and other the Big Tech platforms could fit into Amex’s definition of two-sided markets, because these Big Tech platforms usually charge prices on one side of their markets, for example, advertisers, and use that revenue to subsidize the creation and maintenance of the product itself, which they then give away to consumers.

Notably, in DOJ’s January 2023 Complaint, there was an absence of specific identification of the two-sided market; Instead, the focus was on three crucial markets within the ad tech stack: advertisers, publishers, and vendors of ad tech tools.[12] First, for websites seeking to sell advertising space and viewer impressions, Google provides its publisher ad server through DoubleClick, facilitating requests for advertiser bids for publisher ad space.[13] Second, catering to advertisers, Google offers both Google Ads and Display & Video 360, enabling bids to be placed on publisher ad servers for advertising on websites.[14]  Third, Third, Google Ad Exchange serves as a platform connecting publishers and advertisers, inclusive of Google’s own services.[15] Given its prominence as a leading search engine, Google’s control over user data further solidifies its dominance in the ad tech market, allowing it to command a significant portion of profits and stifle competition from other vendors.[16]

The DOJ’s complaint serves as a testament to the pressing need for adjustments in antitrust law to adeptly address AI-driven monopolies in the realm of digital marketing.

Yueming (Maggie) Ren is a 2L at Vanderbilt Law School. With a background in M.S. in Public Relations and Corporate Communication from NYU, she hopes to merge her passion for law and media to best serve her clientele in a transactional business law space.

[1] See David S. Evans & Richard Schmalensee, Some Economic Aspects of Antitrust Analysis of Dynamically Competitive Industries (Working Paper 8268, National Bureau of Economic Research, May 2001), http://

[2] See Google leads in the race to dominate artificial intelligence, Business, The Economist (Dec 7, 2017),

[3] See Magali Eben, Market Definition and Free Online Services: The Prospect of Personal Data as Price, 14 J. L. & Pol’y for Info. Soc’y 232 (2018) (suggesting the perspective to view information as a form of currency and integrate this feature into relevant market analysis).

[4] Complaint at 2-4, United States v. Google LLC, No. 1:23-cv-00108 (E.D. Va. filed Jan. 24, 2023) [hereinafter DOJ Complaint],; Press Release, Dep’t of Just., Justice Department Sues Google for Monopolizing Digital Advertising Technologies (Jan. 24, 2023),

[5] See id.

[6]  Fiona M. Scott Morton, Is Antitrust Law Keeping Up?, Yale Insights (July 12, 2013), (“The head economist for the antitrust division of the U.S. Department of Justice, said that while the essential laws dictating antitrust haven’t changed in 100 years, new technology, [and] globalization … have greatly expanded the realm of what can fall under antitrust.”)

[7] See Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, 90 Stat. 1383.

[8] 15 U.S.C. §§1-2 (2004).

[9] 15 U.S.C. §§1-2 (2004).

[10] Ohio v. Am. Express Co., 138 S. Ct. 2274, 2287 (2018). 2285-88.

[11] See Amex, 138 S. Ct. at 2274, 2280, 2286-87 (2018).

[12] Complaint, United States v. Google LLC, No. 1:20-cv-03010 (D.D.C. Oct. 20, 2020) [hereinafter Google Complaint],

[13] Id.

[14] Id.

[15] Id.

[16] Julia Stoyanovich, Opinion: Google has been force-feeding us ads. Now one big antitrust case could change the internet forever, Los Angeles Times (Sept. 24, 2023 5 AM),

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