The past week has been a historic one for antitrust. Facebook was sued by the Federal Trade Commission and 48 state attorneys-general for violating the Sherman Act by buying up competitors including Instagram and WhatsApp in order to squash them as potential rivals. As I cover in my latest column, this marks a big shift, in that regulators have finally begun to see digital markets not as economists do, but as the participants themselves would — not anything close to “efficient” markets but rather winner-take-all landscapes in which you have to get big, or get out.
Regulators often take heat for fighting the last war, but the truth is that they’ve moved pretty fast (at least by the standards of government) to curb the power of the technology giants since the 2016 elections. It was only a couple of years ago that Facebook’s Mark Zuckerberg was giving senators on the Hill what sounded like a four-hour tech support call in testimony about the company’s business practices (“How do you sustain a business model in which users don’t pay for your service?” Republican senator Orrin Hatch asked Zuckerberg. “Senator, we sell ads,” the Facebook founder quipped). Now, the FTC, the state attorneys-general and in particular the House of Representatives judiciary subcommittee on antitrust are putting out very sophisticated and tight cases about the problems of surveillance capitalism, with creative ideas about how to tame them. Representative David Cicilline deserves a lot of credit for this, as do Columbia University legal scholars Lina Khan and Tim Wu, both of whom have helped move the ball forward big time (as has Barry Lynn at the Open Markets Institute, where — full disclosure — I am a board member).
The challenge now is how to connect the transatlantic dots. I moderated a very interesting discussion last week with all the major European tech regulators, as well as Cicilline, Texas attorney-general Ken Paxton and FTC commissioner Rohit Chopra.
One of the most interesting things was a sense that common themes were developing in the various national approaches to tech regulation. The US, UK and EU are in different ways moving towards forced divestiture of assets for players who violate rules. Everyone agrees on the need for interoperability of apps across platforms (that’s a big nub in the Facebook case; platforms have the power to force developers to work only within their ecosystem or risk being cut off). This would likely lead to algorithmic auditing to ensure that there’s no discrimination or breaking of rules. That starts to take tech regulation to a place that’s more similar to financial regulation, which is where it should be. On that note, check out this very interesting Stanford paper by Yale’s Thurman Arnold Project fellow Dina Srinivasan, which looks at how Google monopolises advertising markets in ways that would be prohibited in other electronic trading markets.
None of this is to say that there aren’t major challenges ahead in addressing not only Big Tech, but concentration of power issues in general. Europe understands regulation and the importance of protecting liberal democracy, but isn’t as smart about the challenges and opportunities presented by the technology itself. The most sophisticated technologists live in the US, but they all too often think that technology itself can fix all the problems of our political economy (blockchain will solve wealth inequality!). The trick is blending the two.
Ed, since we’ve been conversing in the last few weeks about various Joe Biden appointments, let me ask you how you think the new administration will handle the technology industry, should it be able to get any legislation through? Will the approach be fundamentally different than Barack Obama’s?
Rana, there’s no doubt that Biden’s approach to Big Tech will be much less friendly than Obama’s, which at times felt like one long Google hangout. The reduced public standing of Facebook, Google, Amazon, etc is one clear example of how dramatically the world has moved on since 2016. But translating that far more critical sentiment into action is another question. Biden may be lucky to inherit the FTC case against Facebook and Google, both of which have widespread support among the states. All he needs is let those battles continue.
But he has two other decisions to make, to which I don’t know the answer. The first is whether to incorporate California’s European-style data privacy regulations into federal law. That would be a good step but it will meet fierce Silicon Valley resistance. His second, related, decision is whether to forge a common transatlantic front on Big Tech — up to, and including, agreeing to a European digital tax and adopting a common philosophy on what constitutes abusive monopoly behaviour (beyond the old Chicago school definition of harm to consumer welfare). America’s old antitrust philosophy is dead but the new has yet to be born. It may take some time to know where Biden stands.
Correction: Dina Srinivasan’s paper is a Stanford University paper. An INET grant helped support the research.