Google's top antitrust defender: 'It's fun'

Either side of this fight would be fun for Google's Dana Wagner.

After nearly a decade of slumber, the U.S. government went into 2009 turning over rocks for potential antitrust violations inside the technology industry. Perhaps no company has been affected by this move toward legal activism more than Google, and perhaps no one within Google has the unique perspective on antitrust law and corporate rights of Wagner, senior competition counsel at Google.

A former prosecutor in the U.S. Department of Justice's antitrust division and the U.S. Attorney's Office for San Francisco, Wagner's first job in the private sector arrived almost three years ago as he sought new challenges following a stint with a Justice Department that had grown boring: regulators like to regulate and litigate, and when that's not happening, the job is less fun.

While at the U.S. Attorney's Office for San Francisco in 2007, Wagner was approached about becoming Google's first full-time competition counsel, part of the company's decision to aggressively hire attorneys and lobbyists as it anticipated the pending clash with federal regulators. It sounded more interesting than other private sector gigs he had contemplated, and the money certainly didn't hurt: although Wagner pointed out you can make a boatload more with a private law firm if you're willing to sacrifice a bit of your mental health.

Since then, however, life for both antitrust regulators and lawyers at the world's most important Internet company has accelerated amid the intense scrutiny paid to Google's intentions during the last year. He's certainly not bored anymore.

"It's fun," Wagner said, speaking of his "intellectually challenging" role at Google over the last three years. Since arriving in Mountain View, Calif., Wagner has sought to improve Google's image among antitrust regulators and opinion makers by what he describes as directly engaging opponents, seeking out debate, and "trying to get ahead of the curve."

That involved reaching out to his former colleagues in government for a quick lesson on how AdWords works. It included lining up allies friendly to the cause, such as when Google assembled a roster of disability advocates to stump for approval of its Google Books settlement with authors and publishers. And it required a deft hand with the media, hoping to paint a picture of Google as a company that comes in peace, rather than one bent on destruction.

Google needed to do a better job explaining itself to those in government in particular, Wagner said. "Particularly as a west coast engineering company that still very much views itself as a start-up in a lot of ways, striking out against some Goliaths."

Google has long been a trendsetter in the Bay Area, but it found itself a little off guard in the nation's capital, probably because of how quickly the company rose to prominence. In 2006, the year before Wagner was hired, Google spent just $750,000 on political lobbying in Washington. Its current foes on the antitrust front--AT&T and Microsoft--spent a combined $35 million that year in political contributions.

That has changed. However, Google has certainly had its setbacks with the government: its proposal to strike a search deal with Yahoo was clearly not going to fly, CEO Eric Schmidt had to step down from Apple's board due in part to scrutiny regarding his overlapping roles, and Google was forced to amend its book search settlement at the last second after the Justice Department raised an eyebrow at several provisions. That included agreeing to limit the scope of the agreement and backing off some business models for book search.

Yet Google continues to introduce new products such as Chrome OS and expand existing ones like Android while keeping its gravy train--search advertising--intact from regulators. For now, at least: Google's increasing power over the Internet is troubling in many corners of the country, and although the company has not been accused of any wrongdoings it's safe to say that as the decade closes, a lot of people are starting to get freaked out by Google.

Despite that external perception, many people inside Google still think of the company as a unique force for good in the world. Wagner is a card-carrying member of the Google creed, with perhaps a lawyer's intuition of what "don't be evil" means.

"It's really important to people here; I can say something is perfectly legal but it's not good for users, and that would be taken seriously," he said. Earlier in the year, during a meeting with the tech press in San Francisco, Wagner blurted out "there's a lot of companies for which I wouldn't do this job. I would not be doing this at Halliburton."

Wagner, 34, has spent his whole adult life in government service before taking his current gig at Google, coming out of the University of California at Berkeley and Yale Law School. "As soon as he arrived here, you could tell he was destined for big things," Mark Siegel, Wagner's former supervisor at the Justice Department, said in an interview with Law.com earlier this year. "He was always the youngest guy in the room."

While those in the top jobs at government organizations change offices with the political winds, the people inside those organizations doing the brunt of the work--former colleagues now on the opposite side of the conference room table from Wagner--are for the most part career professionals.

"There is more consistency than people think. Ninety-five percent of the organization is the same people with the same values," he said, referring to the fact that despite the clear increase in antitrust activity inside the Obama administration--which Wagner concedes--the lawyers that are actually doing the work are the same people they were five years ago when the pace of antitrust scrutiny slowed during the Bush administration.

So will Wagner end up inside a courtroom in Washington, D.C. sometime in the next several years, defending Google's business practices against some of the same antitrust lawyers he once called friends?

While there's a part of Wagner that would likely relish the challenge, he has too keen a sense of antitrust history as it pertains to the tech sector to hope the situation gets that far.

"We don't want to repeat the mistakes of past companies," Wagner said. "Even when you are doing good things, you can end up suffering."