The global tsunami of Big Tech company antitrust investigations finally has hit. The Department of Justice, Federal Trade Commission and virtually all the states currently have initiated formal inquiries against Amazon, Facebook, and/or Google. Jurisdictional lines also are blurring, making these investigations either more efficient through information sharing or more unwieldy if turf battles break out regarding which agency has primary prosecutorial responsibilities.
And further afield, the European Commission is continuing its antirust focus on the activities of these companies, eager to hear what U.S. antitrust enforcers are discovering.
A parallel track of Big Tech scrutiny, particularly in Congress, has been to hold a series of hearings on the effect of competition on data and privacy. The third conclave was held earlier this month by the House antitrust subcommittee, and more Big Tech company representatives can be expected to take their turns at the witness table in the coming weeks and months.
The plethora of antitrust investigations are at early information-gathering stages. The issuance of subpoenas and outreach to Big Tech competitors who are eager to describe in detail how they have been disadvantaged in the marketplace by one or more tech Goliaths illustrates that these are serious pursuits. For now, the only certainty is that any antitrust cases that ultimately may be prosecuted — either by government lawyers or in civil class actions — will take years to be completed. The development of effective remedies is especially complex, even if the end result is either a consent decree or a settlement.
Meanwhile, Big Tech will continue to face serious scrutiny regarding consumer data collection, sharing and privacy practices. At a practical level, the antitrust investigations are likely to be in the spotlight as vast government and company resources are devoted to them. This makes sense, since the potential antitrust penalties range from multi-billion dollar fines to the more severe mandates of partial or complete corporate divestiture. Consequently, companies as well as Congress may move Big Tech data privacy issues to the back burner. Continuous hearings will keep the flame burning in this area, but they may not produce the type of distinct (and headline-grabbing) outcomes that are possible when the Sherman Act and comparable state laws are employed.
This dynamic is not beneficial to millions of American consumers who may view digital privacy as a higher priority than government oversight of Big Tech competition. That’s because Big Tech companies, regardless of their size or dominance in the marketplace, are unlikely to adopt privacy practices that others can or will follow. The antitrust laws actually are working against consumer interests by not allowing the largest Big Tech companies to share perspectives on privacy protection measures that they are developing or that already have been put in place.
Counterintuitively, for privacy it would be better public policy for Big Tech companies to be permitted to assemble their own big tent where they can begin discussing collectively their data collection, sharing and privacy protection regimes. Here, unlike in the antitrust realm, Congress has a central role to play.
It is possible to separate the antirust and privacy concerns in a manner that does not impede the competition investigations. This would take the form of a narrow, time-specific (18- to 24-month) antitrust exemption for the specific purpose of having these companies develop workable consumer data privacy protocols that could be implemented voluntarily on an across-the-board basis throughout the digital ecosystem, rather than in piecemeal fashion.
Big Tech companies already may have antitrust immunity, based on prior judicial rulings, from working together to influence any consumer data privacy policy that may be created in the near future. And Congress already has enacted a series of expansive laws exempting Big Sports (Major League Baseball and the National Football League), Big Newspapers (the Newspaper Preservation Act), and Big Insurers (the McCann-Ferguson Act) from antitrust liability writ large. This means that any potential political blowback for enacting a Big Tech antitrust exemption would be cushioned by ample legal precedent.
My proposal is more modest, with a short-enough sunset period to see if results would be forthcoming. Such an antitrust exemption would be beneficial to Big Tech, too, if it was able to show how joint action provided a workable privacy self-regulatory model, thus making legislation less necessary. On a public perception level, Big Tech also would be able to score some consumer brownie points by developing a suite of privacy solutions that could take hold sooner rather than later.
Congress has the legislative authority to enact a limited antitrust exemption for Big Tech on privacy, but it will need to obtain the support of the Department of Justice to do so. Such a two-step process is welcomed, since Justice will be vigilant in ensuring that any exemption not impede the scores of antitrust investigations already under way. In effect, this exemption would enable the tsunami to continue at full force while simultaneously creating some possibility of better consumer data privacy protection.
Admittedly, the legislative details of my proposed antitrust exemption will need to be developed with greater specificity, along with sensitivity to the joint action boundaries it would establish.
Although consumer privacy protection would be the ultimate goal, the exemption would not guarantee that Big Tech companies would work together to use their combined economies of scale and scope for the public good. But moving in this direction would provide an effective route forward in at least one major area of political and social concern about Big Tech’s ever-expanding reach into the daily activities of our lives.
