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Matter of Debate

Why Android is Google’s Trojan horse

The more data it collects, the more dominant its position.

This is a POLITICO debate. For the counterargument, click here. 

If media reports are to be believed, the European Commission will soon sanction Google for anti-competitive behavior regarding its Android mobile operating system and apps.

This decision is of crucial importance because it will put a stop to Google’s unfair practices. These include preventing third parties from competing in mobile operating systems, key services and apps, and reinforcing its dominant positions in these areas.

But it’s even more important because it gets to the heart of Google’s anticompetitive behavior: its growing monopoly over our personal data.

Google has already implemented very similar practices in newly connected devices such as smart TVs, to ensure that any digital experience on its devices is a Google experience.

Achieving this would enable Google to collect ever more vast amounts of data across a variety of devices, not just on what we search, but on where we go, what we read, watch, buy, and eat — indeed on just about every aspect of our lives. Controlling this data would give Google the power to commandeer the majority of advertising revenues on these devices just as it now dominates mobile advertising.

Our data is worth a lot of money, and the Android ecosystem allows Google to extract it from us, in increasing quantities, essentially for free. The more data Google is able to collect and combine as a result of its dominant positions, the better it can optimize its ads and ad technology, increasing the moat that exists between itself and competing digital advertising providers.

It all seemed very different when Google introduced Android in 2007: Android would be an open-source product, and everyone would be able to contribute to it and build on it. Consumers would gain from increased competition, choice and innovation. That promise, however, was short-lived.

What Google presented as a unique opportunity for community development and innovation quickly turned out to be merely the hook of an elaborate bait-and-switch plan.

Phone manufacturers jumped on the opportunity to access and help develop a mobile operating system that looks like Apple’s but is open source, only to find that Google has applied a variety of ways to close Android down and turn it into a Trojan horse for Google’s other products.

Sure, Google to this day provides a version of Android (called “AOSP”) as an open-source product. But over time, Google has moved a lot of the functionality that used to be part of the open source operating system into a proprietary layer than runs on top of it called Play Services.

If a mobile phone provider wants to provide Google’s app store with Android it must install Play Services. And if the provider wants to offer Google’s app store, it must also install an entire collection of other Google (proprietary, non-open source) apps on its phones.

As a result, as a practical matter, not a single phone offered commercially in Europe runs without Google’s collection of proprietary software. Moreover, under the guise of a Google prohibition on so-called fragmentation, any phonemaker that offers apps from the Google store is contractually forbidden from selling open-source AOSP phones.

Hence the basic premise and promise of open source — namely enabling anyone to modify and improve upon open source code — is abrogated. Phone manufacturers are forced into a straitjacket and prohibited from innovating and differentiating their devices.

“Fragmentation” is Google’s pejorative term for differentiation and competition. And ensuring that consumers benefit from product differentiation and competition is what antitrust law is all about. It’s thus no surprise that Google’s “fragmentation” prohibition has been targeted by the European Commission.

Google has sponsored some who claim to represent app developers to argue that the Commission’s action would destroy open source, killing the livelihood of thousands of app developers who rely on Google Android.

This echoes the unsuccessful defense Microsoft made more than a decade ago and — as then — the truth is the opposite. It is highly ironic that Google would claim that the Commission’s enforcement undermines open source, when in fact it is aimed at protecting the very essence of what open source is about: the ability to build upon existing products and take them in a new direction, leading to greater competition and innovation.

A competitive software market ultimately benefits developers, by fostering competition and innovation in the operating systems on which their apps run. Competition in Android operating systems would have a further benefit: It could foster greater competition in relation to the use of our data, and how it is applied to generate advertising revenue.

For the Commission’s enforcement in relation to Android to be meaningful, however, the Commission must ensure that it is not just fighting last decade’s battle. It must formulate its remedies to cover any like conduct in relation to the emerging data mines of the present and future, namely connected devices such as smart TVs, cars and fridges.

These devices present highly similar incentives for data collection, run Google Android, and are subject to Google’s anticompetitive behavior in the same way as the way in which mobile device markets have already succumbed. The Commission has an opportunity to make a real difference for consumers of these devices, a chance that won’t come again for a generation.

Thomas Vinje is partner and chairman of Clifford Chance’s global antitrust group and counsel to FairSearch, an association of tech companies that is the main complainant in the Android case.

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