Some in Congress want to make online search more competitive by deciding in advance how search competition should work.
Sens. Amy Klobuchar (D-Minn.) and Eric Schmitt (R-Mo.) introduced the Securing Enforcement of Americans’ Right to Competition at Home (SEARCH) Act earlier this month. Billed as a bipartisan effort to protect consumers and curb Big Tech’s power over online search, the proposal would write into federal law many of the sweeping remedies sought in recent monopolization cases against Google.
The SEARCH Act would bar Google and other search engines from paying browsers and operating-system providers for default placement. It would require browsers and devices to present users with a “choice screen,” force search engines to provide rivals with data and search results at marginal cost, and restrict technology acquisitions and joint ventures more aggressively than current antitrust law does.
Protecting competition is a worthy goal. The bill’s economics are much shakier. By replacing the United States’ traditional focus on consumer welfare with European-style ex ante market design, the SEARCH Act would likely raise costs, weaken incentives to innovate, and give federal enforcers broad power to favor some firms over others.
Europe Already Tried This Search
The SEARCH Act borrows heavily from the European Union’s Digital Markets Act (DMA), which imposes broad, upfront restrictions on large digital platforms. Under the DMA, regulators need not prove that a company has market power or that a particular practice harms consumers. The law bans certain conduct categorically.
The DMA has now been in force for two years, and its promised gains in innovation and consumer choice remain elusive. In several cases, Europe’s ex ante rules have made familiar services more cumbersome.
After the European Union barred Google from integrating hotel and flight search tools in ways regulators considered “self-preferencing,” users had to click through more pages to complete basic bookings. Studies estimate that those extra steps cost European users millions of euros in lost time, while direct hotel-ad bookings fell 36%.
European rules also require “choice screens” that ask users to select a search engine or browser. These prompts may offer more options on paper, but many users ignore them, dismiss the pop-ups, and return to familiar services. More prompts do not necessarily produce more meaningful choice.
Regulatory uncertainty has also delayed new technology. European consumers waited longer for AI-powered search, live translation, and smart-assistant tools because platforms feared large fines under unclear DMA requirements. Those delays also left European technology startups without tools that their American competitors could already use.
Importing the same regulatory philosophy into U.S. antitrust law would make the American technology sector less competitive in the name of promoting competition.
There’s No Such Thing as a Free Default
Section 3 of the SEARCH Act would bar search engines from paying browsers, device makers, and other distributors for default placement. Yet default arrangements long predate the internet and often reflect ordinary, pro-competitive business conduct.
Supermarkets, for example, routinely give their private-label products prime shelf space. That arrangement can reduce “double marginalization,” which occurs when firms at different stages of a supply chain each add their own markup. Fewer markups can mean lower prices for shoppers.
In digital markets, payments for default status can serve as a form of “competition for the market.” Search engines compete for distribution by offering browsers and device makers better terms. The resulting revenue helps fund free software, including open-source browsers such as Mozilla Firefox, as well as mobile operating systems and privacy-focused services.
A ban would strip independent platforms of a major source of revenue. They would then have to cut features, add more advertising, charge users, or some combination of the three. Consumers would pay the price through higher costs, weaker products, and a worse browsing experience.
A Search Engine on Someone Else’s Dime
The SEARCH Act’s data-sharing rules are just as troubling. Sections 5 and 6 would require covered search platforms to provide “qualified competitors” with access to search indexes, ranking signals, and user-query data at marginal cost.
Building a modern search engine takes billions of dollars and years of continuous work. Companies must crawl the web, organize vast amounts of information, and refine the algorithms that decide which results users see.
Requiring firms to share those assets at cost creates a free-rider problem. Rivals gain access to expensive infrastructure without making comparable investments, which gives them less reason to develop better crawling tools or new search designs. Incumbent search engines also have less reason to improve their products when regulators can require them to hand those improvements to competitors.
Mandatory data sharing also creates serious privacy risks. Even when firms remove obvious identifiers, distributing search-query data across more companies gives hackers more targets and creates more opportunities to identify users by combining datasets.
The SEARCH Act would trade user privacy and long-term investment for a government-designed shortcut to competition.
Regulating the Search War That AI Already Changed
The SEARCH Act arrives just as generative artificial intelligence is reshaping online search more quickly than any law or lawsuit could. The rapid growth of conversational tools such as ChatGPT, Claude, and Perplexity shows how fast technology markets can change when new products challenge established ones.
These services have already brought real, market-driven competition to traditional search engines without Congress designing the terms of entry.
The SEARCH Act would still pull “AI search” into its regulatory scheme. Section 3(e) would require covered platforms to obtain written approval from the Federal Trade Commission before making certain acquisitions, investments, or joint ventures involving search or AI competitors.
That preapproval requirement would add delay and uncertainty to venture funding, strategic partnerships, and product development. It could slow the deployment of American AI models and weaken U.S. technological leadership just as competition from China and other geopolitical rivals intensifies.
Why Courts Need Room to Judge
Flexible U.S. antitrust law has one major advantage over rigid ex ante mandates. Judges can weigh competitive harms against benefits, account for commercial and technological realities, and tailor remedies to the conduct proved at trial. They also know that an appeals court can reverse them if they misapply the law or give too much weight to one side of the evidence.
Consider the recent Google Search case. U.S. District Judge Amit Mehta found that Google’s default agreements with Firefox and Safari helped it unlawfully maintain its search monopoly. Those contracts limited rival search engines’ ability to reach “minimum efficient scale,” the level of activity needed to compete economically.
According to Mehta, Google’s default placement generated more searches, clicks, and user data, which helped the company refine its index and ranking algorithms. Rivals received less data and therefore struggled to produce comparably strong search results.
When fashioning a remedy, though, Mehta confronted tradeoffs that the SEARCH Act largely ignores. He recognized that simply banning Google’s distribution agreements could harm competition among both search engines and browsers. He also concluded that requiring Google to provide its data to rivals for free or at marginal cost could weaken incentives to create and improve those assets, a concern long reflected in U.S. antitrust law.
Mehta instead required Google to offer certain data to competitors on “commercial terms.” That approach restricts Google’s control over its proprietary resources while still requiring rivals to pay market-based compensation. It seeks to preserve incentives for Google and its competitors to collect data, improve search quality, and develop competing tools.
The EU’s DMA offers no comparable flexibility. Neither would the SEARCH Act’s categorical ban on default agreements.
Google has appealed the liability ruling, which legal scholars have also criticized. Appellate review gives courts another chance to test whether a practice’s anticompetitive harms truly outweigh its pro-competitive benefits. Rigid ex ante rules sharply limit, or eliminate, that safeguard.
Europe’s Mistakes Need No U.S. Sequel
America’s technology sector became a global engine of growth under antitrust laws that focus on consumer welfare, rather than firm size or the protection of competitors from vigorous competition.
Existing laws, including the Sherman Antitrust Act, already give federal courts power to police anticompetitive conduct case by case. Recent platform litigation shows that judges can examine evidence, weigh competitive harms against benefits, and craft targeted remedies without imposing broad rules that may leave consumers worse off.
Congress should learn from Europe’s experience before importing its mistakes. The United States does not need antitrust rules that assume the verdict before the evidence arrives. It needs enforcement that follows the facts wherever they lead.
