President Biden’s selection of Jonathan Kanter, a longtime critic of Big Tech’s anticompetitive practices, to head the Department of Justice’s antitrust division is a sign that the administration is serious about holding tech behemoths like Facebook accountable.
But the executive branch’s efforts alone are unlikely to stop the social media giant from gobbling up its competitors rather than competing fairly — which has long allowed it to skirt the competitive market pressures that could force it to better protect its 2.5 billion users from massive privacy breaches and fast-spreading misinformation. The administration’s ability to enforce antitrust laws, including pressing Facebook to break off WhatsApp and Instagram into separate businesses, is only as strong as the laws themselves and the courts’ willingness to apply them to the digital world.
That point was made clear last month when federal antitrust complaints filed by the Federal Trade Commission and 48 states including Massachusetts were thrown out by a federal judge in Washington. Now Congress, where antipathy toward the tech giant’s actions is a rare area of bipartisanship, must act with haste to bring antitrust laws into the social media age.
“Courts really don’t know how to define antitrust markets in the digital context,” said Representative David Cicilline of Rhode Island, a Democrat who chairs the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law.
The ruling, by Judge James Boasberg, held that federal and state officials failed to assert a “properly defined antitrust product market,” a prerequisite to proving that Facebook violated the law.
“It is almost as if the [FTC] expects the court to simply nod to the conventional wisdom that Facebook is a monopolist,” Boasberg wrote.
It was not a total legal victory for Facebook — state and federal officials were given 30 days to refile new complaints with more specifics about their claims. But even if those lawsuits move forward, they would potentially take years to reach a conclusion.
The lawsuits also face a major complication: The antitrust law that the FTC and the states seek to enforce was crafted decades ago to regulate and, if necessary, break up companies with more concretely defined markets, as in the landmark Standard Oil case. Though the federal Sherman Antitrust Act was successfully used against AT&T in the 1980s to force the company to break up its local telephone services, known as Baby Bells, applying the 1890 Sherman Act to the fast-changing Internet age has proved more problematic for government regulators. There hasn’t been a major successful action against a tech company since a ruling against Microsoft led to a landmark settlement two decades ago.
“Anybody on the internet knows that Facebook has monopoly power,” Senator Elizabeth Warren tweeted after the ruling, calling for stronger antitrust laws. “They control 85 percent of social network traffic, bulldoze competition, and undermine our democracy.”
Just days before the ruling, the House Judiciary Committee advanced several bills to update antitrust laws to rein in anticompetitive practices by tech giants like Facebook, Amazon, Google, and Apple. One would shift the burden onto the companies to prove they are competitive rather than on the government to prove they are not. It would also give more resources to federal regulators to police anticompetitive activities in the digital world.
The House bills follow a congressional report led by Cicilline and Representative Ken Buck, a Republican from Colorado, detailing the companies’ move to squash or consume their competitors.
The companies “use the market dominance they have to grow their market position to crush competitors, acquire them, and crush innovation,” Cicilline said. “They’ve been allowed to grow and grow, basically with no oversight, no regulation, no robust antitrust enforcement, and they now have enormous monopoly power.”
The danger of Facebook’s unchecked power and massive size are of particular concern to Biden, who on Monday called the misinformation about vaccinations that Facebook allows to be disseminated on its platform deadly. But staffing up his administration with heavy hitters like Kanter, who made a career of defending Big Tech’s competitors, won’t be enough if the law hasn’t been modernized to back up those efforts. Only Congress can accept that request.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
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Congress must bring antitrust laws into the digital age to hold Facebook accountable - The Boston Globe
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