As you know, there is a lot of noise coming out of Washington about suing Big Tech for all sorts of Antitrust violations. I have written about this many times in the past and have consistently stated that the current antitrust laws would be hard to use against these tech companies. The core premise of the Antitrust laws of the last century was to go after companies if they were a monopoly, and there was no competition.
It was influential in the days when railroads had comprised owners and telecom had only one primary provider, etc.
But to argue that the big tech companies today do not have competition is hard to prove legally. Amazon, while a behemoth in online selling, has challenges from Walmart, Costco, and Target.
Facebook and Twitter also behemoths, also have social media competitors, albeit more vertical driven than the broader market Facebook and Twitter serve today. However, there is still legitimate competition for both of them.
Even the antitrust case against Microsoft used older antitrust rules. One of the prosecution’s goals to break-up the company broke down in light of the tighter interpretation of aged antitrust laws.
I don’t pretend to know enough about antitrust law to get into the weeds, but I know enough after following the Microsoft trial very carefully, that under current antitrust rules, trying to break up big tech companies or even change their behavior, will be difficult.
I have written many times that we need newer antitrust laws or even a new regulatory body for the digital age. Until recently, I had not seen much written that suggests new ways to oversee tech with new antitrust rules and laws for the digital century.
The folks from Axios were alerted recently to a new paper written by the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy. The authors are highly schooled in antitrust law and include Tom Wheeler, former Chairman of the FCC under Obama and former president of CTIA
Phil Verveer, who is a visiting fellow at the Harvard Business School and was the lead counsel in the AT&T antitrust suit.
Gene Kimmelman, Senior Advisor for Public Knowledge and a leading advocate for Consumer protection.
Here is the Axios brief description of the paper and short analysis:
The government should establish a new Digital Platform Agency to regulate major tech firms, three Democratic former federal officials argue in a new paper from Harvard’s Shorenstein Center shared first with Axios’ Ashley Gold.
Why it matters: This is the latest proposal being offered up as policymakers weigh reining in Big Tech beyond rewriting antitrust laws or taking a gamble on enforcement action under existing ones.
Context: Former FCC chairman Tom Wheeler, former DOJ antitrust counsel Gene Kimmelman and former FCC counsel Phil Verveer write that antitrust enforcement is important but not enough. They argue that today’s economy requires a new agency akin to the Consumer Financial Protection Bureau.
“We’re trying to put out the idea and the concepts, and try to make the case that a new administration may see this as an appropriate challenge,” Wheeler told Axios.
Details: The agency would be able to sue companies over misbehavior, and hold them to reasonable standards of care, stepping in if firms are harming consumers or behaving negligently.
Wheeler compared the proposed agency’s standards to the fire and electric codes that businesses have been held to for over a century.The agency would place a particular focus on promoting interoperability and responsible data practices and working stop platforms from preferencing their own goods, services or content over rivals’.
Yes, but: It’s unlikely this Congress will take any action on the paper’s ideas. But it could serve as a basis for something the new Congress proposes — though likely only if Democrats take control of both the House and the Senate and Joe Biden wins the presidency.
As Axios states, this paper will not have any impact on how this current Congress deals with Big Tech. It introduces some well-thought-out ideas from experts on Antitrust law that could serve as a more practical way US politicians oversee Big Tech in the future.
Here is a link to the paper itself and its abstract:
Statutes and Regulatory Models Adopted for the Industrial Era are Insufficient for the Realities of the Internet Era
ABSTRACT:
The digital marketplace is wide-reaching, complicated, and self-reinforcing. The systems developed to oversee an earlier time are burdened by industrial era statutes and decades of precedent that render them insufficient for the digital present.
In the absence of federal oversight, the dominant digital companies have made their own rules and imposed them on consumers and the market. Just as industrial capitalism operated—and thrived—under public interest obligations, so should internet capitalism be grounded in public interest expectations.
Those expectations—and the new rules to implement them—should be the reinstatement of responsibilities long established in common law: the duty of care and the duty to deal.
To accomplish this a new Digital Platform Agency should be created with a new, agile approach to oversight built on risk management rather than micromanagement. This would include a cooperatively developed and enforceable code of conduct for specific digital activities. As both a fail-safe and an incentive, the agency would also retain its own independent right of action.
This link includes the Executive Summary that is excellent in its own right, and I highly recommend you take the time to read this summary.
This paper is being circulated to every member of Congress and introduces some solid ideas on how any government’s laws could be amended or rewritten.
It could help Congress provide more oversight and rules that would allow Big Tech to continue innovating, yet live within more stringent guidelines of fairness and consumer protection.
