Senate Antitrust Panel Appears Ready to Tussle With Big Tech

U.S. Sen. Mike Lee, a Republican from Utah and ranking member of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, was engaged in a testy exchange with Facebook Privacy and Public Policy Vice President Steve Satterfield at Tuesday's hearing, the latest to put Big Tech executives on the spot.

Lee brought up a "series of bombshell reports" about Facebook he read in the Wall Street Journal last week. The series argues Facebook knows "in acute detail that its platforms are riddled with flaws that cause harm, often in ways only the company fully understands." 

Satterfield countered that Facebook's internal research, leaked to the WSJ, reflects the way "we think that’s an important way of encouraging free and frank discussion within the company." The report, he said, had "missed the mark" in its depictions of the company's internal workings.

This provoked Lee, who yelled, "How does it miss the mark? How does it miss the mark, any more than revelations years ago about tobacco companies concealing the dangers of tobacco? ... And what tobacco companies knew about what they were doing to their own users?"

If there was any concern the antitrust crackdown on Silicon Valley stalled in Washington, D.C., over the summer, Tuesday's hearing seemed to indicate lawmakers on both sides of the aisle smell blood in the water and feel there's much to be gained politically by pursuing Big Tech — and not just in front of the cameras.

Lee's remark about tobacco was one of several references of the day made about companies and industries that lawmakers on Capitol Hill have dismantled in the 20th century. And while numerous hearings on Big Tech in the last two decades have featured pearl-clutching grandstanding followed by little to no antitrust legislation, the mood appears to have shifted.

To start, the Biden administration has been installing antitrust hawks in key regulatory agencies like the Federal Trade Commission.

Numerous bills are also being proposed, like the Competition and Antitrust Law Enforcement Reform Act put forward by U.S. Sen. Amy Klobuchar of Minnesota, the Democrat who chairs the U.S. Senate antitrust panel.

"When big data inhibits competition by allowing those who have it to block access to markets for those who do not, we need to step in and fix it. This means enforcing our existing antitrust laws to their fullest extent to protect competition. It means updating our antitrust laws for the modern economy, just as we've done centuries past," Klobuchar said in her opening remarks.

There's also the Open App Markets Act, from Connecticut Democratic Sen. Richard Blumenthal on the panel, which targets Apple and Google's control of their app stores. Plus, companion Senate legislation is reported to be on the wing to match five bipartisan bills from the House Antitrust Subcommittee that openly target Amazon, Apple, Facebook and Google.

• The American Innovation and Choice Online Act would prohibit discriminatory conduct by dominant platforms, including a ban on self-preferencing a company's own products and services.
• The Platform Competition and Opportunity Act prohibits acquisitions of competitive threats by dominant platforms, as well as acquisitions that entrench the market power of online platforms.
• The Ending Platform Monopolies Act attacks the ability of dominant platforms to leverage their control across multiple business lines.
• The Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act promotes competition online by insisting on interoperability and data portability.
• The Merger Filing Fee Modernization Act updates filing fees for mergers for the first time in two decades to boost the budgets of the Department of Justice and Federal Trade Commission.

Last, but not least, the bills have the support of a bipartisan coalition of 32 attorneys general, who sent a letter Monday to Democratic and Republican leaders of the House and the Senate, as well as their respective judiciary committees. 

"We stand ready and willing to share our experience with members of Congress, including how our antitrust enforcement efforts have met inappropriate skepticism in the courts," the coalition wrote.

"Modernization of our antitrust laws is long overdue and broadly supported," said California Attorney General Rob Bonta in a press release announcing his support of the coalition. "The last time Congress passed a comprehensive update to federal antitrust laws was many decades ago – before tech companies like Facebook or Google even existed."

But are the bills on the table the right ones to tamp down monopolistic behavior without dealing death blows to the American companies that have come to dominate much of the nation's economic landscape? Tech industry lobbyists have been hotly contesting much of the language behind the scenes. Still, the executives testifying Tuesday made pains to avoid any remarks that might be perceived as aggressive or aggrieved.

"Data by itself does not guarantee better or more successful products," Google Vice President Markham Erickson told lawmakers in his prepared remarks. "Rather, it is the investment, innovation and method that matters, not just the amount of data a company may have."

Charlotte Slaiman, competition policy director of the advocacy group Public Knowledge, offered a kind of blessing for the variety of laws under consideration during her remarks at the hearing.

"For decades, Washington has taken the perspective that we need to let digital businesses run wild to see what great innovations they might come up with. But today, unscrupulous data practices and consolidated power have led us to a place that isn't anyone's dream of what the internet was supposed to be," Slaiman said.

She added, "Congress has already done the laudable work of introducing a series of bills to combat these harms. The best time to pass them was 10 years ago, but the second-best time is now."