House Antitrust Plans to Release Big Tech Report Next Week
Expect the House Antitrust Subcommittee to release its report on Big Tech next week, Chairman David Cicilline, D-R.I., told us after Thursday’s final hearing on the matter. House Judiciary Committee Republicans planned to introduce legislation to amend Section 230 and limit liability protections for platforms making “editorial decisions,” ranking member Jim Jordan, R-Ohio, announced at the hearing.
Cicilline highlighted several items for potentially strengthening antitrust law that he said he will review: changes in presumptions about what constitutes an anticompetitive deal, separations of lines of business to remove conflicts of interest, more rigorous antitrust enforcement with greater resources, reversal of court decisions misinterpreting the intention of Congress and provisions that prohibit discriminatory behavior. Cicilline based those items on fifteen months of internal document collection and public testimony.
Jordan said the Republican bill would replace Section 230’s “otherwise objectionable” categories and extend liability protection only in certain specific instances when editorial decisions are made on an objectively reasonable basis. The bill would replace Section 230’s “subjective standard,” he said.
House Judiciary Committee Chairman Jerry Nadler, D-N.Y., asked witnesses what Congress can do to dissuade companies from pursuing obviously anticompetitive deals. It’s nearly impossible to challenge an acquisition of a nascent competitor, said Brookings Institution visiting fellow and ex-Assistant Attorney General William Baer. He cited Facebook’s purchases of Instagram and WhatsApp. The law could be shifted so that once a company reaches a certain size, they have a heavier burden to justify the merger, said Baer.
The FTC and DOJ haven’t given any signal to suggest antitrust laws need to be updated, said House Antitrust Subcommittee ranking member Jim Sensenbrenner, R-Wis. He said the focus should continue to be the consumer welfare standard and enforcement. He and several Republicans suggested enforcers need greater resources, including Reps. Ken Buck, Colorado, and Kelly Armstrong, North Dakota. "The current price-focused model of antitrust enforcement fails to account for innovation and consumer choice,” Buck said.
Like Cicilline, Rep. Pramila Jayapal, D-Wash., asked witnesses if making certain deals presumptively illegal would be helpful. She suggested shifting the burden to companies to prove their deals aren’t competitively harmful. In democracy law and corruption law, prophylactic laws are essential, said Fordham University School of Law associate professor Zephyr Teachout. Washington Center for Equitable Growth Markets and Competition Policy Director Michael Kades also spoke in favor of presumptive measures.
Jordan and Rep. Greg Steube, R-Fla., largely focused their questions on Section 230 and claims of anti-conservative bias. Tech companies have abused Section 230, and the evidence is sex trafficking, terrorism and revenge porn flourish on platforms, said Conservative Partnership Institute Senior Director-Policy Rachel Bovard: Jordan’s bill deals with massive catchalls companies use to avoid any consequence for this content.
Enforcers should unwind illegal acquisitions that they didn’t catch like Instagram and WhatsApp, said Open Markets Institute Enforcement Strategy Director Sally Hubbard: There’s no rule unwinding retrospective mergers. If three Democrats were running the FTC, the U.S. would have vastly different enforcement, she said.