by Robert Romano
The Antitrust Division of the Justice Department is setting its sights on big tech firms like Google, Facebook, Twitter and Amazon in announcing a review of potentially anticompetitive activities that could be limiting consumer choices, hurting small businesses and some say even engaging in censorship.
The review will determine “whether and how market-leading online platforms have achieved market power and are engaging in practices that have reduced competition, stifled innovation, or otherwise harmed consumers,” according to a Justice Department press release on July 23.
The focus on “market power” will undoubtedly hold tremendous implications affecting most adult Americans. A Pew report found 68 percent of adult Americans use Facebook, or over 170 million. 24 percent use Twitter, or about 61 million. A separate Pew report found 73 percent, or 185 million, use broadband internet. Statista reports that Google’s family of sites are the most popular in America, with 255 million unique U.S. visitors in March 2019 alone.
The press release added, “The Department’s review will consider the widespread concerns that consumers, businesses, and entrepreneurs have expressed about search, social media, and some retail services online. The Department’s Antitrust Division is conferring with and seeking information from the public, including industry participants who have direct insight into competition in online platforms, as well as others.”
Similar concerns have been raised on a bipartisan basis. Sen. Elizabeth Warren (D-Mass.) wants to go as far as to break the companies up. In a recent statement, she said, “As these companies have grown larger and more powerful, they have used their resources and control over the way we use the internet to squash small businesses and innovation, and substitute their own financial interests for the broader interests of the American people. To restore the balance of power in our democracy, to promote competition, and to ensure that the next generation of technology innovation is as vibrant as the last, it’s time to break up our biggest tech companies.”
Democratic presidential candidate U.S. Rep. Tulsi Gabbard (D-Hawaii) is suing Google for $50 million for suspending her ads account immediately following the Democratic debate.
According to the complaint: “At the height of Gabbard’s popularity among Internet searchers in the immediate hours after the debate ended, and in the thick of the critical post-debate period (when television viewers, radio listeners, newspaper readers, and millions of other Americans are discussing and searching for presidential candidates), Google suspended Tulsi’s Google Ads account without warning. For hours, as millions of Americans searched Google for information about Tulsi, and as Tulsi was trying, through Google, to speak to them, her Google Ads account was arbitrarily and forcibly taken offline. Throughout this period, the Campaign worked frantically to gather more information about the suspension; to get through to someone at Google who could get the Account back online; and to understand and remedy the restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.”
The implications are clear, Gabbard argues: “Google could unilaterally and decisively end a presidential candidate’s bid for office if it chose to, for example by tweaking its search algorithm to disfavor the candidate; or blocking the candidate from its ad platforms; or keeping the candidate’s communications from getting to interested voters who use Gmail for email communications.”
This is the heart of any potential antitrust suit. With money changing hands, whether for political campaigns, non-profits or news sites, social media companies that arbitrarily suspend accounts and engage in deplatforming are interfering in commerce.
That doesn’t mean the extent of the problems fall under antitrust. Other alternatives that have been proposed, including by this author, might be for Congress to narrowly expand the franchise of protected groups under civil rights law to include politics, excluding employment hiring for exclusive organizations like political parties and organizations, and defining interactive computer services, banking, DNS resolution, web hosting and email services as public accommodations so that services cannot be denied on the basis of politics.
The push by the Justice Department comes on the heels of the White House Social Media Summit where President Donald Trump cited censorship on social media as a major concern of his administration. “Big tech must not censor the voices of the American people,” Trump declared, adding, “I’m directing my administration to explore all regulatory and legislative solutions to protect free speech and the free-speech rights of all Americans.”
The President noted the removal of tweets by Twitter of actor James Woods as an example of the type of censorship taking place, saying, “James Woods. I don’t know James, but he’s an interesting guy and he’s a conservative guy. And he is a straight shooter. He’s tough. But when they want to take him off — and other people like him; many in this room, some in this room — it’s a very, very bad — it’s a very bad thing.”
Other recent examples of deplatforming include Stephen Crowder who has been demonetized on Youtube (owned by Google) and Candace Owens was temporarily suspended on Facebook before the company did a reversal and declared it “an error.”
To follow up the summit, Trump promised that there would be a meeting with “representatives of the major social media platforms” to have “a real conversation” about the issue.
Now, given the Antitrust Division’s threat of legal action including its statement that “If violations of law are identified, the Department will proceed appropriately to seek redress,” those meetings may have become a whole lot more interesting. Perhaps a deal can be struck that avoids a confrontation.
In the meantime, the Trump administration is wise to step up antitrust enforcement in this area, keeping its constitutional Article II, Sec. 3 obligation that the President “shall take care that the laws be faithfully executed…” Prior administrations have sidestepped robust antitrust enforcement in an environment when media consolidation could be threatening the possibility of a push to one-party style systems that stifle dissent and silence opponents.
Some well-intentioned but foolish (in this author’s estimation) thinkers would have the administration simply ignore what could be rampant violations of antitrust by big tech firms engaging in anticompetitive cartel behavior. But limited government means that officials cannot act arbitrarily when they make decisions but are guided and limited by laws. Ignoring antitrust and other laws designed to promote free markets, commerce and civil rights have brought us to this point. This should be handled carefully, and if the laws are not being followed, the Justice Department should take action. That’s what it is there for.
Antitrust is a broad tool, but given Congress’ own lack of action in this area, and the reluctance of prior administrations to enforce the laws while big tech firms keep getting bigger, it may be the only one in the administration’s wheelhouse that has any teeth.
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