Congress sending mixed messages on antitrust and Big Tech – The Whittier Daily News

Congress has been sending contradictory signals about the duties owed by internet related firms with monopoly power.

Last October, the House Judiciary Committee issued a massive report on monopolistic practices by Apple, Google, Facebook, and Amazon.The federal antitrust statutes have long required firms with market power not to exclude competitors.The report proposed going beyond those rules to reach how internet monopolists should treat their customers, especially content providers.

[M]arket power online has corresponded with a significant decline in the availability of trustworthy sources of news, the report states. Through dominating key communication platforms, Google and Facebook have [created] an uneven playing field in which news publishers are beholden to their decisions.

This observation applies to Amazons activities as well, in making providers of news and commentary beholden to [Amazons] decisions, to deny access to the internet.

An extension of antitrust from rules of fair play with competitors to treating customers fairly is not unprecedented. European antitrust law has long included that element. American antitrust investigations against each of the high tech companies identified in the Judiciary Committee Report have already been launched.

The Federal Trade Commission opened an inquiry into Amazon in 2019, in which the California Attorney Generals office is also participating. The FTC has focused on Amazons using its access to information about consumers to favor its own products when they compete with other vendors using Amazons market place and, in some cases, squeezing out those competitors.

President Biden will soon appoint a successor to the former FTC Chair, bringing that independent commission under the control of a majority of three Democrats, out of the five commissioners. Federal antitrust enforcement is split between the Justice Department and the FTC. Both agencies will now reflect the new Presidents antitrust priorities.

On the issue of high tech monopolization, however, there has not been much partisanship. Both the Justice Department and the FTC commenced their investigations of Apple, Amazon, and Google, under Republican leadership.

That bipartisanship might now begin to fracture over the question of whether the Sherman Acts prohibition of monopolization extends to prohibit conduct allegedly practiced by Amazon and other media powerhouses to exclude conservative news sources and commentary.

The immediate irritant is Parler, a content and commentary site catering to conservatives. Amazon terminated Parler access to Amazons web services. Apple and Google did the same. In each case, the reason was Parlers having carried posts associated with the January 6 attack on the U.S. Capitol that the web service provider asserted encouraged violence, with many of the criminals allegedly communicating during the attack using Parler.

Amazon, Apple, and Google maintain that such posts violate their contractual terms of use by which Parler was bound.

Parler had sued Amazon under federal antitrust laws, for having used Amazons monopoly power to exclude it from the internet. It is difficult to find an internet host other than the big three. Two weeks ago, Parler dropped its antitrust lawsuit, having cobbled together an alternative route onto the web. Though off for a month, Parler is now back on the internet.

The House Oversight Committee has just demanded that Parler identify the funding sources which enabled it to circumvent the exclusion from the internet effectuated by Amazon, Apple, and Google.

That request seems to approve Big Techs decision to ban Parler, an action that Congress could not have itself ordered because of the First Amendment, but which it applauds when implemented by a monopolist.

The House Judiciary Committee, by contrast, wants to extend antitrust laws prohibitions to encompass how these monopolists deal with content providers. Because of January 6, Parler might not be the best champion for that principle, but other credible providers of conservative viewpoints, like Prager University, have made the same complaint.

If we extend the reach of antitrust laws to how monopolists treat their customers, protecting diversity of opinion is a commendable premise to do so.

Tom Campbell is a professor of law and a professor of economics at Chapman University. He served five terms in the U.S. Congress, including service on the Judiciary Committee. He has taught antitrust law for over thirty years.

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Congress sending mixed messages on antitrust and Big Tech - The Whittier Daily News