Nov 19, 2019

DOJ scrutiny of tech could stretch beyond antitrust

Deputy Attorney General Jeffrey Rosen. Photo: Win McNamee/Getty Images.

High-ranking antitrust enforcers, speaking at an influential D.C. legal forum, zeroed in on big tech companies' potential for anticompetitive behavior but also signaled they may take a broader approach to policing the industry.

The big picture: The Trump administration, Congress and state attorneys general are all investigating tech companies, including Google and Facebook, for antitrust violations. But they're also acknowledging that the laws governing competition may not be enough to rein in powerful online platforms.

Driving the news: Deputy Attorney General Jeffrey Rosen said Monday the Department of Justice's review of tech platforms could reach beyond antitrust issues and the department does not view antitrust law as a " panacea for every problem in the digital world."

  • "We will not ignore any harms caused by online platforms that partially or completely fall outside of the antitrust laws," Rosen said in a speech at the American Bar Association's antitrust forum in Washington. "We are keeping in mind other tools in areas such as privacy, consumer protection, and public safety as part of a broader review of online platforms."
  • Meanwhile, Federal Trade Commission Chairman Joe Simons said the agency will take a "fresh look" at the consumer welfare standard and "alternatives" to the standard. Antitrust law considers consumer prices as a key metric in that standard, which makes evaluating "free" online services more challenging.

Details: Here's who is investigating what...

  • FTC: In addition to the agency's antitrust probe of Facebook, Simons said Monday the agency has multiple investigations into major platforms underway. The agency has reportedly interviewed Amazon's third-party sellers.
  • DOJ: The antitrust division is investigating both Google and Facebook, with antitrust chief Makan Delrahim telling Congress last week the competitive dynamics around personalized advertising is an area of focus.
  • State attorneys general: Multi-state coalitions are also investigating Google and Facebook.
  • Congress: The House Judiciary Committee launched a probe of competition in digital markets earlier this year.

And both federal antitrust agencies are staffing up to add more resources to their tech probes.

  • Simons said the FTC is hiring two technologists for its technology enforcement division, and said he would double the size of the team if Congress provided more funding.
  • Delrahim said the antitrust division just posted five openings for attorneys to work on its tech investigations.

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Facebook co-founder and CEO Mark Zuckerberg. Photo: Chip Somodevilla/Getty Images.

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The big picture: "We used to look for reasons that a regulator might object to a deal," said a senior deal-maker at a large Wall Street bank. "Now we look at it from the opposite direction: We assume there will be objections, and then look for reasons why it won't get held up."

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