Why the tech antitrust reform bills are struggling to move forward

I.

Watching Congress debate a package of tech reform bills this week has been sort of like watching a group of people ordered to eat a giant submarine sandwich all at the same time. Everyone has started in a different place, no one agrees on a path forward, and people almost can’t help butting heads.

This should be a moment of huge importance in the history of tech and democracy in the United States. The House Judiciary Committee investigated competition in the tech industry for a year. During that time, Congress held 10 hearings. In the end, a 449-page report on the subject was produced. And from that report came a package of bills that, if passed, would reshape the tech industry and probably some other large corporations as well.

The bills are rooted in concerns that I have long shared and written about. A small number of companies now controls vast sectors of the economy with little oversight or accountability. How their platforms are used and abused is of huge consequence globally. And in many cases these companies have acted to stifle competition — lowering prices to drive their rivals under; privileging their own products over competitors; preventing competitors from using their services entirely; using near-monopoly profits to maintain their positions; and acquiring potential threats before they can disrupt the incumbent.

At the same time, despite Congress taking so long to intervene, market competition has continued anyway. Google may spend billions to ensure it is the default search engine on the iPhone; but its rival DuckDuckGo just raised $100 million amid record growth, and the Brave browser just introduced a search engine of its own. Facebook had social networking mostly to itself in the mid-2010s, and is currently working to own the future of virtual reality. But TikTok and Snapchat now dominate the attention of younger users, and the company is gradually remaking all of its apps in an anxious effort to respond.

Of course, the mere existence of rivals doesn’t necessarily mean that the current market is perfectly fair or functional. But it does increase the challenge for writing legislation that addresses our underlying concerns about the platforms. Members of Congress talked at great length on Wednesday about wanting to make markets more competitive, but what is really at stake is the state-like power a handful of apps have to control aspects of our daily lives. It isn’t that no one can conceivably compete with them in the future; it’s that they have too much power now.

That’s why I like this bill, which would increase funding for antitrust enforcement by 30 percent. Rather than simply ban most mergers and acquisitions by default, as another bill in the package would do, this one empowers the Federal Trade Commission and the antitrust division of the Department of Justice to scrutinize M&A more carefully. The downside of such an approach is that absent other legislation, courts could strike down the agencies’ enforcement actions; the benefit is that agencies can make more informed, case-by-case decisions.

I also like a bill designed to make it easier for consumers to switch between platforms, even if it raises real privacy concerns. (Are the phone numbers in my contacts app really mine to share, even if it makes consumer apps much more competitive?) I also like aspects of Rep. David Cicilline’s bill American Choice and Innovation Online Act, which would restrict platforms from indulging in some of their worst impulses: Amazon using third-party seller data to inform its own product development, for example, or Apple advertising its many subscriptions throughout the operating system.

But at the risk of sounding incredibly naive about the political process, this is not really the debate we just had during a marathon bill markup session in the judiciary committee.

II.

The House bills all have Republican co-sponsors, and appear to enjoy some support in that delegation. But key Republicans have so far refused to engage with any of these bills on a policy level, insisting instead that tech reform begin (and possibly end?) with prohibitions on “censorship.”

Galled by the removal of former President Trump from Facebook, Twitter, and other platforms, and perhaps energized by Florida’s recent passage of a (likely unconstitutional) bill that would make such content moderation illegal, some Republicans want to throw out the entire process. Members of Congress in this camp include the House minority leader, Kevin McCarthy, and Rep. Jim Jordan, the ranking Republican on the Judiciary Committee.

This piece from Politico this week gives you some flavor of the discussion:

Jordan has been publicly pushing against the bills, while McCarthy has said he’s planning to unveil his own tech reform agenda.

“We’ve got a beef with all Big Tech in the sense of the censorship they have of conservatives now,” Jordan told Fox Business on Tuesday. Jordan added, however, that the antitrust bills coming to a vote are sponsored by “four impeachment managers” — questioning top Democrats’ ability to write legislation that conservatives can favor.

Set aside for a moment the fact that Trump was removed from these platforms because he was using them in an effort to overturn the results of a fair election, the thing to highlight here is that Republican leadership’s concerns have nothing to do with “competition” per se. Instead, their outrage is rooted in the idea that anyone else might have power over their speech.

We know what happens when elected officials are allowed to post whatever they want online — they attack minorities, they manufacture influence operations against their own citizens, they chip away at the foundations of democracy. (This has been the story in India for the past year, and if you assume it is a preview of the next Republican administration here in the United States, as I do, it’s quite chilling.)

For these Republicans, then, the goal is not actually to make platforms like Facebook and Twitter less powerful — it’s to ensure that they can use those platforms’ power to achieve their own ends, and to make it illegal for anyone to stop them. When Trump shut down his blog 29 days after starting it, it wasn’t in protest of platforms’ power — it was out of the frustration that he no longer had access to it.

The Politico story and other reporting on the subject suggests that Democrats will struggle to find 10 Republicans in the Senate to sign on to most of these bills, and perhaps to any but the one providing extra funding for antitrust enforcement.

For as long as the parties have spent agreeing that somebody ought to do something about Big Tech, in important ways they are still talking past one another.

III.

I mean, the Democrats aren’t exactly all in agreement, either.

There is a split between progressive and moderate Democrats in just how far these bills should go to reshape the economy. And some bills go quite far — Rep. Pramila Jayapal’s Ending Platform Monopolies Act would permit the government to sue big platforms to break them up — Amazon could be forced to divest itself of its logistics network and of Amazon Web Services, for example; Facebook could have to spin out Instagram and WhatsApp.

That has made some Democrats uneasy, as Leah Nylen and Cristiano Lima reported Wednesday in Politico:

A growing number of moderate Democrats are also voicing concern about the proposals under consideration this week, which they warn could have a vast impact on the U.S. economy. That includes at least two key California Democrats that sit on Judiciary, Zoe Lofgren and Lou Correa, who will have a say Wednesday on which bills make it out of the panel and which don’t.

“My concern is that this legislation will essentially push away investment in this area, it will stifle the economics behind it, the job creation,” Correa, whose district includes parts of Orange County, said in an interview Tuesday.

I think these concerns are fair? It’s remarkable that, after years of deliberations, we still don’t know exactly how the government would proceed if these bills became law. Would they sue each platform simultaneously and force them to divest most of their acquisitions? Would they begin new, more targeted investigations of the platforms before they acted? And what would the platforms look like after they were through?

A coalition of advocacy groups, most supported by the big tech platforms, wrote in a letter to Congress that: “Rep. Cicilline’s bill would ban Google from displaying YouTube videos in search results; ban Alexa users from ordering goods from Amazon; block Apple from preinstalling ‘Find My Phone’ and iCloud on the iPhone; ban Xbox’s Games Store from coming with the Xbox; and ban Instagram stories from Facebook’s news feed.”

Those would represent enormous changes to the economy, and yet Congress — which rarely discusses individual products when talking about these issues — has little to say about the specifics. Given that consumers generally do love all these products, that seems risky and ill advised.

I am trying not to be a regulatory nihilist here. Like I said, I think aspects of these bills could do some good. I hope the FTC and DOC get more funding. I hope Apple enables sideloading on iOS, whether or not Congress forces it to. I hope future mergers get more scrutiny, particularly those related to next-generation platforms, rather than last-generation ones.

But two big concerns hang over everything else here. One is that in a Congress where a small handful of Republicans can derail almost anything, there are seemingly more than enough here to stop most of what has been presented in its tracks. And two is that as grateful as I am for the bipartisan group’s work here, it’s hard to shake the feeling that they both took too long to act and bit off more than they can chew.

A member of the bipartisan group, Rep. Ken Buck (R-CO), called the package of bills “a scalpel, not a chainsaw, to deal with the most important aspects of antitrust reform.” But it sure looks like a chainsaw to me. And before Congress revs it up much more, Americans may want to consider exactly what their representatives are proposing to do with it.

The representatives ought to consider it, too.


This column was co-published with Platformer, a daily newsletter about Big Tech and democracy.

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