Judge Spares Google Ads Business From Breakup

On the third floor of a shrinking newsroom in Ohio, a woman named nobody-you’ve-heard-of sells the ad space that keeps the lights on. She does not set the price of that space. She does not choose which exchange her ads run through, or how the auction is rigged, or who takes the cut before the paper sees a dime. She logs into a system built by Google, follows rules written by Google, and waits to see what’s left over. That is the worker this ruling touches, even though her name will never appear in a headline about it.

US District Court Judge Leonie Brinkema had the chance to break the machine apart. Instead she chose to leave the machine standing and post new rules on the wall beside it. The Justice Department asked for a structural remedy - take the tool away from the hand that has been caught using it unfairly. Brinkema gave them a rulebook instead. Google keeps the ad exchange. Google keeps the publisher tool. Google keeps sitting on both sides of a transaction it also referees, and we are told that new behavioral conditions will keep it honest.

I have heard that promise before, though not about computers. I have heard it about company stores that promised fairer scrip, about mine owners who promised safer shafts if the union would just trust the paperwork. The promise is always the same: the man who owns the scale will now weigh the coal correctly. Ask the woman in Ohio how much comfort that gives her. She does not need Google to be punished for sport. She needs someone else besides Google to be able to build a scale.

Here is the mechanism, plainly: when one company owns the tool that publishers use to sell ad space and the tool that advertisers use to buy it, every rule written to constrain that company is a rule that company also gets to interpret first, in its own courtroom of code, before any regulator ever sees the transaction. A breakup would have put the scale in a stranger’s hands. Behavioral remedies leave the scale in the same hands and simply ask those hands to write down what they’re doing. That is not nothing - Brinkema’s order was not written by a fool, and I will grant the Justice Department’s harder critics this much: forced breakups have their own history of failure, of severed companies quietly re-merging their interests through contract even after the ownership papers say otherwise. That is a real argument, and I do not dismiss it lightly.

But the years this case will now consume - years of monitoring, years of compliance reports, years in which the small publisher waits for the machine to prove it has reformed itself - are years in which the woman in Ohio keeps taking what the exchange gives her. The stakes are not abstract to her. They are the difference between a newsroom that survives and one that doesn’t.

So I ask what I always ask when the powerful are told to police themselves: who is in the room when the rules get written, and who is in the room when they get broken. The Justice Department wanted Google out of one side of that room. The court said no, but you can leave a monitor at the door. We shall see, in the years ahead, whether a monitor at the door is a witness or a houseguest.