‘Choice Screen’ Fever Dream: Enforcers' New Favorite Remedy Won’t Blunt Google’s Search Monopoly

Megan Gray / Feb 15, 2024

We may soon choke on choice screens. The Department of Justice regularly foreshadowed a choice screen as a contemplated remedy during the Google Search antitrust trial’s liability phase. And in March, Google will launch a search engine choice screen (and a browser choice screen) in the EU to comply with the Digital Markets Act. While Google would rather not display choice screens at all, the company has smartly realized their impact can be neutralized by abundance. These choice screens will soon surround consumers as part of a stream at setup, which will spill into an ocean of online choice popups. Notably, Google’s business initially succeeded in part because of its “clean” interface, in contrast to Yahoo’s overstuffed ad platform. For over 20 years, Google has studied “ad blindness” in informational display and knows how to manipulate it to its advantage.

Given the popularity of choice screens as a competition remedy, one would presume robust evidence exists to demonstrate their effectiveness. This is especially true for search engines and browser choice screens because competition authorities have imposed them on three occasions: (1) search engine choice screen for EU Android phones (2019 to now), modified three times, and once combined with a browser choice screen; (2) browser choice screen for EU Microsoft Windows computers (2010 - 2014); and (3) search engine choice screen for Russian Android phones (2017 to present).

Shamefully, competition authorities have not required the monopolist to disclose data on the performance of these choice screens, even at a macro-level, such as the percentage of users that select a competing service. This data void is even more glaring when one appreciates the challenge of third-party measurement of tiny market share fluctuations and the lack of consensus among third-party sources (StatCounter, Cloudflare, and Wikipedia tools).

But analysts cannot resist trying to parse the numbers anyway. From these examinations, three key points emerge. First, the Microsoft choice screen probably was irrelevant, given that no one noticed it was defunct for 14 months due to a software bug (Feb. 2011 through July 2012). Second, the Russia choice screen did increase market share for the native search engine, Yandex, the Google of Russia, with its own popular maps, food delivery, file storage, browser, etc., making that example a likely outlier. Third, the EU Android choice screen has not changed Google’s market share.

Given this mediocre evidence, one wonders about the genesis for the choice screen remedy, which does not seem to have been adopted in any case prior to Microsoft. Perhaps enforcers adopted choice screens based on consumer protection principles that we still see today in other contexts. Yet, those principles are now widely understood to be failed models. For example, Europe’s cookie popup boxes are theoretical choice screens -- do you want cookies or not? -- that consumers quickly dismiss without achieving their preferred outcome. Similarly, America’s swarms of legal disclaimers and posted privacy policies are foundationally a choice -- a “notice and consent” framework – that frustrates rather than empowers consumers.

The competition world’s choice screen conversations will predictably replicate the same tired points long debated in the consumer protection world regarding “clear and conspicuous” disclosures. For disclosures, the debate has coalesced on four themes: prominence, presentation, placement, and proximity, the standards of which frequently mutate in the digital environment. After expending substantial resources to formulate the analysis and application of these standards, enforcers failed to grasp that these “clear and conspicuous” disclaimers are now so pervasive that the public largely ignores them. Thus, the ultimate issue -- whether consumers have actual comprehension of the information being disclaimed when encountering it in the real world -- is forgotten; the enforcers lost the forest for the trees.

Similarly, in the choice screen context, much ink will be spilled, and many meetings will be held to discuss how to improve the choice screen. Companies will jockey to be on it, while demanding other rivals be excluded. They will fight over specific design, performance, and language changes to the choice screen. Officials will collect metrics and monitor the display of the choice screen. This is not speculative; it happened with both the Microsoft and Android choice screens. Busy focusing on the minutia of the choice screen, market participants and regulators will forget the ultimate question: Are consumers sufficiently educated and free from undue influence and attention deficits to actually make a conscious choice in practice?

In that analysis, one calls to mind the original moniker for the Microsoft choice screen -- the ballot box, an apt analogy. In a democratic election, a candidate has to be on the ballot; it’s a self-evident prerequisite. But that is far from sufficient. Adding a candidate’s political party affiliation beside the candidate’s name provides more information and perhaps more votes; accompanying the ballot with a multi-page pamphlet in which each candidate has a full page for their platform description is robust information and theoretically more votes -- but neither of these ballot designs usually impacts election outcomes.

Rather, elections are usually decided by what happens well beyond the voting booth, and long before election day. Name recognition and reputation are paramount, and those are often achieved with money and an extensive political apparatus. In this analogy, the online arena is like a company town, emblazoned with the Google brand on the post office, movie theatre, highways, grocery stores, schools, office buildings, and sports stadiums, with the mayoral race between the Google patriarch and another candidate with trivial name recognition. The world is filled with examples of dictatorships holding “free and fair” elections; even without stuffing ballot boxes, the “democratic dictator” abounds. Very often, the ballot presents a choice in concept only.

Choice screens are better understood as another type of informational remedy in the consumer protection field: corrective advertising or consumer education. Corrective advertising dispels specific prior deceptions, attempting to undo the accumulated effects of past behavior, while consumer education is more generalized. Indeed, in a 1977 article, FTC Chair Robert Pitofsky analogized corrective advertising to divestiture remedies in merger cases. Although rare now, the Federal Trade Commission has required companies to issue corrective ads or distribute educational material on many subjects. For example, it required a company to distinguish between Internet access devices and computers in its billing practices.

Consumer protection authorities have largely abandoned this remedy because it, like choice screens, is generally ineffective and even counter-productive. Crafting effective messages is challenging because of the illusory truth cognitive bias (and hindsight bias), in which people are more likely to believe deceptive statements that have been repeated; in essence, familiarity overpowers rationality. Given the evidence presented at the Google Search antitrust trial regarding the company’s studious attention to psychological influences on consumer behavior, wariness of any proposed choice screen is especially justified.

Although choice screens are likely pointless as a competition remedy, if they are nonetheless adopted, enforcers should consider a key aspect of informational remedies -- receptivity to the desired message. It is vital to keep top of mind the question: Are consumers sufficiently educated and free from undue influence and attention deficits to actually make a conscious choice in practice?

One small step toward this in the choice screen context might be the use of “priming,” a psychological phenomenon that influences how consumers process subsequent information. Because the choice screen environment is too cramped to materially impact an individual’s knowledge base or external influences, enforcers could potentially reduce the attention deficit with a message to precede the litany of unrecognized rivals the consumer will soon view: “Google has violated competition laws, preventing you from learning about other search engines. You will now have the chance to choose one.”

Such a message might even be necessary to reverse the anchoring bias from earlier choice screens in the flow or to avoid misinformation inherent in a choice screen for an activity in which Google is both a proper noun and a verb, presented to an audience that has never known a search engine other than Google. Still, while a message such as this could impress on an individual that search engine choices exist, it would not be sufficient to create the trust necessary to select a heretofore-unknown rival.

Thus, choice screens should be understood, at least in the Google Search competition context, as a distraction, a fever dream premised on the principle that consumer choice is suppressed by default settings and status quo circumstances. While true, counter-intuitively, a choice screen is no remedy for that situation. Put another way; a choice screen is not synonymous with choice. When customers have been deprived of choice for a long time (a monopoly for over a decade) and are surrounded by conflicting input (the Google company town), simply presenting them with a ballot box and telling them to vote, will accomplish little.

This truth is a bitter pill because consumer choice is the touchstone for many competition debates. That is fine, but debates should acknowledge that a choice screen is no remedy for a no-choice default. Failure to do so is its own mental bias, a belief that consumers merely need to know that a choice exists, that the inevitable corollary is that consumers will choose the option that best suits their desires, and thus, that knowledge will diversify the market. While it makes intuitive sense, consumer protection experts, especially privacy experts, know the reality. For a generation, regulators have grappled with the “privacy paradox” (the persistent gap between the value consumers say they place on privacy and what their behavior reflects); the competition world should take heed.

Further focus on a choice screen remedy for competition problems is exactly what Google wants. It’s a magician’s trick of misdirection to hijack discussions down this rabbit hole. What we need is dedication to actually solving the Google monopoly, not more time admiring the problem or expending energy on ridiculous remedies. It may be difficult to identify solutions, consider the inevitable tradeoffs, and then achieve those results through the judicial system or legislative process, but it is long past the time we begin that hard work. Failure to do so will doom this era of reinvigorated competition enforcement. The public will rightly mock antitrust efforts if all they achieve is a silly choice screen and a Google that is $26 billion richer from canceled default deals. Let’s avoid this choice screen fever dream.


Megan Gray
Megan Gray is the founder of GrayMatters Law & Policy. She has been a lawyer in the informational digital consumer tech space for 25 years, attending the Google Search antitrust trial as an independent observer. She previously was General Counsel & Vice-President of Public Policy at DuckDuckGo and s...