Vista, Google, anti-trust, and the smell test

If the former #2 in the anti-trust department of the firm that represented Microsoft in the big anti- trust case becomes the head of the Antitrust Division of the Justice Department, and then decides to try to protect Microsoft from state-level anti-trust action, questions are going to be asked.

I’m not qualified to judge the merits of the Google/Microsoft spat over the way Vista treats hard-drive search (see update below), though I admit to a prejudice that whatever The Bellvue Borg wants to do is probably bad for the world. The case as stated in this NYT article seems pretty clear: Vista has its own hard-drive search, and if the Google version is running at the same time the whole system slows down. The fact that Microsoft has backed off suggests that there must have been some “there” there.

But the stunning aspect of the case &#8212 or the aspect that would have been stunning under any other administration &#8212 was the attempt by the Assistant Attorney General for the Antitrust Division to talk the state attorneys general out of backing Google. Since the official in question used to be the vice chair of the antitrust group at Covington & Burling, which represented Microsoft in the original big antitrust case, and since while at Covington he worked on the Microsoft account though not on antitrust matters, the intervention simply didn’t pass the smell test, whatever ethical loophole was found to allow it.

What we’ll never know, of course, is what would have happened had the matter arisen before rather than after the 2006 elections, or how many comparably dirty deals just sailed through during the period of Congressional somnolence.

Update From a reader:

I have to find myself more in the Microsoft corner on this. The search facility is something that is local to the machine, and in truth I’d rather have the OS vendor provide this. Msoft didn’t lock them out, it was just that everything ran miserably slow if they ran simultaneously. This feature in Vista was largely created to provide something that is in MAC’s OS X.

In honesty, as someone who has to support machines (thousands of them), and runs the antivirus software, I am always concerned about programs that do a full file system walk. Antivirus programs link into the I/O (input Output) system, and scans are triggered by file accesses, unless special provisions are made.

The other item about Google running locally on the machine is concerns about disclosure of the data. Right now, we really discourage the use of the Google toolbar for reasons of system stability and for data privacy concerns. Will Google agree to a waive liabilikty defenses over data disclosures etc? Will they provide the support to debug and fix incompatabilities with other programs?

Most of the other complaints against Vista (such as from Antivirus vendors) involve access to the privileged program parts of the system. These are issues where the design really does get into the area of excluding someone else’s product.

I would also like to see Google agree to abandon all its back door attempts to install its toolbar (default to not install unless chosen) in a host of other products.

Brand loyalty to search engines, feh! I use the Google search facility on the web all the time. I don’t want their toolbar on my desktop, or having them as a default web page.

Bottom line, there are a hell of a lot of other vendors with much more grounds to complain against Vista and Microsoft.

Sounds plausible to me, though again I’m no expert. But it seems to me the apparent conflict-of-interest is the big deal here, not the merits of the case.

Second update A reader with expert knowledge of the anti-trust laws and no parti pris in this case suggests that the Assistant AG’s position was legally sound: it’s possible that Microsoft violated the Sherman Act, but it probably didn’t violate the anti-trust decree, which was the basis of Google’s complaint.

Have I mentioned what a pleasure it is to have such knowledgeable and polite readers?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: