Tech's antitrust probes push on in face of pandemic
Big Tech companies, like other U.S. institutions, have donned a mantle of public service by mobilizing to help combat the coronavirus epidemic — but they still have big antitrust targets on their back.
The big picture: Federal and state enforcers and Washington lawmakers are all investigating potential anticompetitive practices by tech giants like Google and Facebook. The pandemic has complicated the timelines of these probes, but hasn't knocked them off their tracks.
Federal Trade Commission
Where it stands: Facebook revealed last summer that the FTC was investigating it on antitrust grounds shortly after the company agreed to pay $5 billion to settle a separate privacy probe by the same agency.
- One aspect of the antitrust investigation involves reviewing whether Facebook's past acquisitions of Instagram and WhatsApp were meant to smother potential competitive threats. The FTC cleared the deals when Facebook made them in the early 2010s.
- FTC Chairman Joe Simons, a Trump appointee, has indicated he's willing to unwind major acquisitions by big tech platforms if the commission finds the deals were anticompetitive.
- Separately, the FTC last month announced a review of a decade of small acquisitions by Amazon, Facebook, Apple, Microsoft and Alphabet/Google, citing concerns that deals not big enough to trigger federal antitrust review may have led to competitive harms.
The pandemic factor: The coronavirus could delay the FTC's work.
- An FTC spokesperson noted the commission generally seeks documents and interviews during typical investigations, but companies' priorities right now have shifted.
- "FTC staff is fully operational but the commission will not sacrifice the scope and thoroughness of its investigations due to current limitations and timing concerns," the spokesperson said. "We are looking at each case individually and will seek to adjust timing as needed."
The Justice Department
Where it stands: Google is in the DOJ's sights, but the agency is also conducting a broader antitrust review of tech companies — bumping up against the FTC's efforts.
- Less is known about the broader effort than the Google probe, which involves reviewing Google's online advertising practices. Lawmakers have also urged the agency to probe Google's search operation.
- The FTC already investigated Google's search practices, but closed the inquiry in 2013 without taking enforcement action.
- Makan Delrahim, the DOJ's antitrust division chief, recently recused himself from the Google investigation, citing previous work lobbying on a Google deal. Meanwhile, Attorney General Bill Barr has moved to centralize oversight of the tech antitrust review through his own appointees.
The pandemic factor: A DOJ spokesman declined comment on how the tech probes are affected by the coronavirus.
- But more broadly, the antitrust division announced Tuesday that it will seek additional time to review mergers and will conduct all meetings by phone or video conference.
Where it stands: The House Judiciary Committee last year launched an investigation into competition in digital markets, recently hearing complaints from small and medium-sized companies about the power of tech giants.
The pandemic factor: Antitrust subcommittee chairman David Cicilline said in a statement Thursday that the pandemic will delay the investigation's timeline, which originally aimed to produce a report by the end of the first quarter.
- "The most important thing right now is ensuring that the American people have the resources they need to get through this outbreak," Cicilline said in a statement. "The subcommittee will get this investigation done the right way, and if that means taking longer than we planned, that’s what we’ll do.”
Where it stands: Almost all U.S. state attorneys general have teamed on two separate probes of Google and Facebook, respectively led by Texas and New York.
- Texas AG Ken Paxton has sparred with Google over outside consultants' access to documents.
The pandemic factor: The tech investigations continue and their priorities haven't changed due to the coronavirus, according to a spokesperson for the New York AG's office.
- Similarly, Paxton spokesperson Kayleigh Date said, "Our investigation and the resources committed to it remain ongoing and unchanged... Staff is teleworking and operating at full capacity. We do not anticipate that this health event will affect our ability to pursue the investigation as planned."
- Still, neither specifically said whether the pandemic will extend the timeline for wrapping the investigations.
What's next: Antitrust investigations, once launched, tend to develop lives of their own. But the coronavirus throws big new uncertainties into the mix.
- The pandemic's economic consequences could ultimately point antitrust enforcers in new directions toward bad actors that exploit the crisis to, for instance, rig bids on foreclosed assets.
- Companies like Amazon and Facebook, after serving as lifelines for getting goods out to Americans and keeping them connected during quarantines, might find themselves better positioned to defend their scale.
- "This is one of the most fascinating tweaks in antitrust history," said Barak Orbach, a law professor at the University of Arizona who focuses on antitrust. "The focus would go away from Big Tech — they are our saviors now."