Panel – Antitrust: Does It Work for Tech?
Brief session description:
Thursday, July 25, 2019 – As the most powerful technology corporations become even more powerful in the age of big data and AI, their mass influence on society has led to many negative unintended consequences. Many leaders in civil society, government and industry have raised concerns and opened up new conversations about whether companies like Facebook, Google, Apple and others should come under antitrust scrutiny. This panel was asked to discuss the costs and benefits of regulation as the leading policymakers and key federal agencies in 2019 examine whether there is a need for an antitrust intervention.
Moderator – Carl Szabo, vice president and general counsel, NetChoice
Jeff Farrah, general counsel, National Venture Capital Association
Keith Klovers, attorney adviser to FTC Commissioner Christine S. Wilson
Chris Lewis, president and CEO, Public Knowledge
Alex Okuliar, partner, Orrick
Details of the session:
Panelists combined their fields of expertise in antitrust policy and marketplace analysis to discuss the controversial topic of enforcing antitrust legislation against Big Tech companies.
Recently, the Department of Justice announced the beginning of an investigation against tech companies Amazon, Google, Facebook and Apple on their role in the marketplace.
The novelty of the Internet marketplace and Big Tech platforms allowed panelists to delve into the intricacies of the issue. Panel moderator Carl Szabo contextualized it by referencing the Sherman Act Section 2 and its previous implementations on various marketplaces, such as standard oil and telecommunications.
Big Tech Today
Jeff Farrah, general counsel of the National Venture Capital Association, said there were twice the number of public companies 20 years ago compared to today. Farrah said he believes the decline is in part because technological organizations are hesitant to go public until their valuations are high enough to compete.
“Most companies aren’t looking to go into the public market until their evaluations are in the single billions,” Farrah said.
Farrah said he thinks large companies have a difficult time leading innovation. Furthermore, he said it is important to have a blend of various sized companies so that smaller companies can stand alone and compete or choose to sell if that is the best option.
Antitrust versus Big Tech
Alex Okuliar, an antitrust lawyer at international law firm Orrick, has previously served in both the U.S. Department of Justice Antitrust Division and the Federal Trade Commission. Okuliar felt that the FTC and DOJ’s announcement of a “tech task force” to review monopolies in the tech industry is an important statement.
“What that has done from my perspective is announced to market participants that both agencies are serious about these issues and want to investigate whether there are harms in the market place,” Okuliar said.
Keith Klover, a Federal Trade Commission attorney adviser, added input from his personal experience but not as a representative of the FTC or any FTC commissioner. He said the FTC’s addressing of antitrust issues cannot be done independently.
“Ultimately, both the FTC and the DOJ are law enforcement agencies,” Klover said. “Neither can take action by themselves.”
Furthermore, Klover said the FTC’s role in addressing antitrust among different networks and platforms is to clearly identify facts separate from the law in each particular case. Using the law as a base for each antitrust investigation allows for consistency among the emerging Big Tech issues, such as data collection and platform dominance.
“We have the law and we have the facts, and the law does not vary,” Klover said.
Antitrust and the Tech Marketplace
Chris Lewis, president and CEO of Public Knowledge, supports the current antitrust regulations, but believes more needs to be done to accurately assess if Big Tech and data-based marketplaces need a further set of policies.
“We’ve been advocating for going beyond the limits of just what antitrust can do to protect the marketplace,” he said.
He said there should be a non-discriminant rule for these platforms that promotes innovation, protects small voices and creates a metric to determine if a platform is dominant.
Okuliar disagreed, saying that additional policy would stifle the market and make it more difficult for policy to adapt to innovation. He said he thinks the current antitrust policies are able to address the growing issues within tech markets.
“People are talking about replacing antitrust standards with prescriptive regulations, which calcifies the existing current market dynamic for a longer period of time” Okuliar said.
Okuliar said the question lies not in whether to regulate further, but to identify what designates good acquisitions from bad acquisitions which result in monopolies. The DOJ and FTC already have effective systems in place to analyze and act on this, he said.
Farrah, like Okuliar, does not believe that further regulations will solve the issue of dominated marketplaces on the Internet. But Farrah, Okuliar and Lewis all agree that analysis and evaluation of Big Tech at this moment is necessary.
“It’s like a butterfly effect,” Farrah said. “You don’t really know what the outcome may be.”
– By Victoria Traxler
The multimedia reporting team for Imagining the Internet at IGF-USA 2019 included the following Elon University School of Communications students, staff and faculty:
Janna Anderson, Maeve Ashbrook, Elisabeth Bachmann, Bryan Baker, Paloma Camacho, Samantha Casamento, Colin Donohue, Abby Gibbs, Jack Haley, Hannah Massen, Grace Morris, Jack Norcross, Maria Ramirez, Brian Rea, Alexandra Roat, Baylor Rodman, Zach Skillings, Ted Thomas, Victoria Traxler, Julia Walter, Courtney Weiner, Mackenzie Wilkes and Cameron Wolfslayer