Klobuchar Pushing for Antitrust Law Update in 2021

Expect increased agency oversight and a concerted effort to update antitrust laws in 2021, said Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., Wednesday at a Public Knowledge virtual event. Facebook Oversight Board Member Jamal Greene said to expect the board’s first content moderation decisions “within days,” on a panel at the State of the Net (SoTN) virtual conference.

The U.S. needs to acknowledge there’s a “major monopoly problem,” said Klobuchar, citing three pieces of legislation. Her Merger Filing Fee Modernization Act (S-1937) with Sen. Chuck Grassley, R-Iowa, would change fees for mega-deals, adding a total of $135 million to the budgets of DOJ and the FTC (see 2012070059), she said. She’s also pushing a merger standards bill (S-306), which would adjust thresholds so transactions won’t be legal if they “substantially lessen competition.” The third is an exclusionary conduct bill (S-307) that would require dominant companies to prove their exclusionary conduct doesn’t risk harming competition. Success doesn’t give a free pass to harm competition, she said.

Klobuchar credited Supreme Court Justice Brett Kavanaugh for siding with four liberal justices in an antitrust decision against Apple in May (see 1905130047). She also credited Merrick Garland, President Joe Biden’s attorney general nominee, for acknowledging antitrust issues alongside Biden at the nomination announcement. Big tech companies are successful and have brought us “good things,” but the U.S. shouldn’t sit back and let the consolidation continue, she said: “Right now, we don’t have that fairness.”

Adding a cyber director within the White House will be “critically important,” said House Homeland Security Committee ranking member John Katko, R-N.Y., at SoTN. The SolarWinds cyberattack (see 2101190067) showed the U.S. can do several things to shore up cybersecurity, he added. The U.S. should centralize .gov authority under DHS’ Cybersecurity and Infrastructure Security Agency, he said. The other four “pillars,” he said, are to: better understand third-party cyber risks; ensure an improved vendor certification process that reduces risk; better understand software assurance; and penalize perpetrators with sanctions and indictments. Everyone knows the SolarWinds attack was Russia, and there need to be “serious consequences,” said Katko.

Part of the problem is that with Big Tech, sometimes a nascent competitor is the only threat to a dominant platform, Public Knowledge Competition Policy Director Charlotte Slaiman said: Antitrust enforcers have erred on the side of under-enforcement historically, which has been shown to be mistaken.

It’s sometimes a strategy for nascent competitors to seek being bought by a major tech company, so that option shouldn’t be eliminated, said American Action Forum Director-Technology and Innovation Policy Jennifer Huddleston. If the only option for startups is to “fight your competitor to the death,” that creates disincentives, agreed Committee for Justice Public Policy Director Ashley Baker.

Congress needs to restore antitrust law to its original intent, which is to democratize markets to ensure large companies can’t occupy monopoly positions that allow them to steal from competitors and consumers, said American Economic Liberties Project Executive Director Sarah Miller: The House Antitrust Subcommittee report (see 2010090053) detailed how to do that.

The future of content moderation resembles something similar to Facebook’s oversight board, said board member Greene, a Columbia law professor. It will require moderators who aren’t “in bed” with Big Tech and aren’t government officials, he said. He noted the board is deliberating the platform’s indefinite ban of ex-President Donald Trump.

Expect a lot of “working the refs” on content moderation in 2021, said NetChoice CEO Steve DelBianco. Given the First Amendment, that’s the only option for government or Congress to regulate editorial content, he said. From an industry standpoint, “it is frightening to have those attacks from both sides on social media moderation: one side that wants more moderation, and the other side that wants less,” he said.

As FCC chairman, Tom Wheeler, now at the Brookings Institution, wanted a new digital platform agency with a new approach to regulation (see 2008200041). The U.S. has been “burying its head in the sand” for too long, he said Wednesday, accusing enforcers of being afraid to touch digital companies because “we might break the magic.” It’s normal to establish new agencies for new technologies, agreed Fiona Scott Morton, a Yale economist. Morton, a potential candidate for an open FTC seat, noted the FCC was created in response to the telecom industry, and there are agencies for automobiles and aviation. “It’s completely normal,” she said.