May 18, 2020 - Technology

Antitrust clouds gather over emboldened tech giants

Illustration: Aïda Amer/Axios

Despite tech becoming a pandemic-era lifeline for people stuck at home, 2020 could still see major confrontations between Big Tech and government.

Driving the news: A new report on Justice Department moves toward suing Google reminded the industry that the coronavirus only hit “pause” on techlash. Meanwhile, Facebook’s announcement of a major buy reminded Washington that Big Tech plans to keep augmenting its power.

What's happening: Today, the tech philanthropy group Omidyar Network is unveiling what authors call a "roadmap" for an antitrust case against Google.

  • Drawing on findings that U.K. competition regulators made public in December, the report argues that Google has used its products to shut out competing online advertisers from reaching its users and to cut off web publishers from the revenue generated by their content.
  • The report's release comes on the heels of Friday's Wall Street Journal report, which said a DOJ suit against Google was "likely" as soon as this summer, to be followed by a likely parallel suit from a coalition of 50 states in the fall. Such litigation, the product of concurrent investigations, would aim to demonstrate that Google has used its advertising business to harm competitors.
  • Separately, Facebook announced it was acquiring animated image repository Giphy. The $400 million transaction, first reported by Axios, marks one of Big Tech's highest-profile deals since the pandemic reset the dynamics of the industry's public image.

What they're saying: "[T]here is significant reason for concern that Google has violated U.S. antitrust law," write the report's authors, Omidyar's David Dinielli and Yale economics professor Fiona Scott Morton, who both served in the DOJ's antitrust division during the Obama administration.

  • They argue that just looking at Google's percentage of the display and video ad markets may vastly understate the actual power it wields there, thanks to the ubiquity and dominance in digital video of Google-owned YouTube.
  • "[I]n the digital advertising market, virtually all roads lead through Google," they write.
  • "Using the insurmountable data advantage it derives from its search engine and other properties as well as contract and design choices, Google has made it nearly impossible for publishers and advertisers to do business with each other except through Google."
  • Public Knowledge's Gene Kimmelman and Charlotte Slaiman, former federal antitrust attorneys, also contributed to the report.

The other side: Google has long denied engaging in anti-competitive behavior, noting in a blog post last year that the ad tech sector is "famously crowded" and that the average online advertiser uses three to four platforms to reach users. Google also sought to rebut some of the U.K. findings underpinning today's report in a recent filing.

Meanwhile, Facebook's purchase of Giphy could raise antitrust questions for the social network at a time when it is already under intense scrutiny.

  • The Federal Trade Commission is already in the process of reviewing similar deals dating back to 2010.
  • While sources familiar with the deal say it is not subject to mandatory federal review, regulators could investigate it anyway, given the spotlight on the company's data collection practices and privacy record.
  • “Just like Google purchased DoubleClick because of its widespread presence on the internet and ability to collect data, Facebook wants Giphy so it can collect even more data on us," GOP Sen. Josh Hawley, a frequent Big Tech critic, said in a statement.
  • "Facebook shouldn’t be acquiring any companies while it is under antitrust investigation for its past purchases."

Context: Litigating an antitrust case against any major tech firm is a major undertaking, and the government's past efforts — suits against IBM and Microsoft — have been lengthy, inconclusive affairs.

The bottom line: As companies edge back toward business as usual and revive their merger pipeline in a friendlier public atmosphere than they enjoyed before the pandemic hit, each step they take will test regulators' appetite for challenging them.

Go deeper: Facebook's Giphy acquisition invites antitrust attention

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