Senate Lawmakers Respond to Calls to Break Up Big Tech
Amid calls to break up Facebook’s “monopoly,” Sen. Orrin Hatch, R-Utah, told us the current tech landscape isn't comparable to that surrounding antitrust activity against Microsoft in the late 1990s, when he chaired the Senate Judiciary Committee. Anticompetitive issues could surface, “but I don’t see any reason for it right now,” he said. The Open Markets Institute, Public Citizen and Content Creators Coalition are among groups demanding Facebook divest Instagram, WhatsApp and Messenger (see 1805210051). Treasury Secretary Steve Mnuchin separately said DOJ should investigate big tech concentration of ownership.
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Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, told us the situation is “pretty simple.” If tech companies are violating antitrust law, “I expect DOJ to enforce the laws. Do I know enough about Facebook violating antitrust laws? No, but I would always expect DOJ to vigorously enforce the antitrust laws.”
Mozilla fellow Gigi Sohn said Grassley’s comments are “fine,” but antitrust law is only as strong as its enforcers. She cited Assistant Attorney General Makan Delrahim’s comments in April, which she said signaled the DOJ’s antitrust chief believes current antitrust laws can address whatever issues arise. She argued there’s clear market abuse to warrant antitrust investigation but questioned how hard enforcers are probing. FTC enforcement action is more likely than an investigation from DOJ, she added.
Sen. Richard Blumenthal, D-Conn., a Judiciary member, told us Facebook and Google deserve continued scrutiny. He said FTC should reopen its investigation of Google, and Facebook should get stronger antitrust oversight. There hasn’t been such an indication from either agency, he said. Senate Judiciary Committee ranking member Dianne Feinstein, D-Calif., told us, “Every big company deserves scrutiny. Yes, they both should be scrutinized.”
FTC Chairman Joseph Simons signaled the agency should take a retrospective look at antitrust decisions, R Street Institute Technology Policy Manager Tom Struble said, citing his recent appearance with FCC Chairman Ajit Pai before the Senate Appropriations Financial Services Subcommittee (see 1805170073). Struble expects the agency to determine if previous decisions have had false positives and negatives, but he’s skeptical there are any legitimate antitrust cases to be brought against big tech. Struble said it was “odd” that Mnuchin wants more tech scrutiny, since antitrust issues aren't his area of expertise.
Former antitrust litigator Alicia Downey, founder of Downey Law, said Amazon’s acquisition of Whole Foods was a good antitrust test case for the tech industry. The deal was ultimately approved because no negative impacts were identified for price, innovation or consumer choice, she said. Lacking evidence of consumer harm, antitrust cases against Google and Facebook are unlikely, she said. Though Microsoft’s anticompetitive behavior concerning Internet Explorer was addressed in the late 1990s, the company wasn't “broken up,” and Microsoft hasn’t “taken over the world” since, she said.
Downey said political motivations are driving the concept that there's consumer harm in tech, but reality is antitrust law doesn't support the notion that “big is bad.” Sohn expressed skepticism about Republicans like Sen. Ted Cruz, Texas, and Sen. John Thune, South Dakota, urging more tech scrutiny, saying the GOP has a political distaste for Google.