This past fall, the Federal Trade Commission and 48 state attorneys general filed suit against Facebook, charging it with illegally maintaining a monopoly over the social-networking space “through a years-long course of anticompetitive conduct.” Soon after, the US Department of Justice and 11 state attorneys general filed suit against Google, charging it with illegally maintaining a monopoly over the search and search advertising markets. Apple is currently locked in a civil trial with game developer Epic Games, which is challenging Apple’s control of its App Store on antitrust grounds.
Last summer, the US House Judiciary Committee concluded a 19-month investigation into alleged anticompetitive activity by the tech titans. The resulting 450-page report described the companies as “the kinds of monopolies we last saw in the era of oil barons and railroad tycoons” and recommended that the government take action against them.
It’s easy, of course, to dismiss anything that comes out of Washington or Brussels as political posturing, but in this case that would be a mistake. President Joe Biden has named some of Big Tech’s sharpest and most vocal critics—including Columbia University professor Tim Wu, author of the book The Curse of Bigness, and Lina Khan, who served as special counsel to the Judiciary Committee during its investigation—to important roles in his administration. Europe is putting in place tougher regulations to try to limit Big Tech’s power. And antitrust action, at least with regard to the tech industry, has become that rarest of things: a bipartisan issue in Congress.
What’s arguably more important is that we’re in the middle of a radical shift in the intellectual discussion—one that has made it much easier to go after Big Tech. In many ways, we seem to be going back to the antitrust vision that determined US policy toward big companies for much of the 20th century, a vision that’s much more skeptical of the virtues of size and much more willing to be aggressive in keeping companies from exercising monopoly power.
America’s key antitrust laws were written around the turn of the 20th century. The Sherman Antitrust Act of 1890 and the Clayton Act of 1914 remain on the books today. They were written in broad, far-reaching (and ill-defined) language, targeting monopolists who engaged in what they called “restraint of trade.” And they were driven in large part by the desire to curb the giant trusts that had, via a series of mergers and acquisitions, come to dominate America’s industrial economy.
The quintessential example was Standard Oil, which had built an empire that gave it essentially complete control over the oil business in the US. But antitrust law wasn’t just used to block mergers. It was also used to stop a host of practices that were deemed anticompetitive, including some that nowadays seem routine, like aggressive discounting or tying the purchase of one good to the purchase of another.
This all changed with the Reagan administration in the 1980s. Instead of worrying about big companies’ impact on competitors or suppliers, regulators and courts started to focus almost entirely on what was called “consumer welfare.” If a merger, or a company’s practices, could be shown to lead to higher prices, then it made sense to step in. If it didn’t, antitrust regulators generally took a hands-off approach. That’s why Facebook’s acquisitions of Instagram and WhatsApp, Amazon’s acquisition of Zappos, and Google’s acquisitions of DoubleClick, YouTube, Waze, and ITA all sailed through the regulatory approval process without a hitch.
No longer, though. Over the past four or five years, scholars, politicians, and public advocates have begun to push a new idea of what antitrust policy should be, arguing that we need to move away from that narrow focus on consumer welfare—which in practice has usually meant a focus on prices—toward consideration of a much wider range of possible harms from companies’ exercise of market power: damage to suppliers, workers, competitors, customer choice, and even the political system as a whole. They’ve done so, not surprisingly, with the Big Four squarely in mind.
But what exactly would reining in Big Tech’s power look like? Short answer: It depends very much on which company you’re going after.
While antitrust advocates often rhetorically lump Apple, Amazon, Google, and Facebook together, creating a memorable image of four giant “gatekeepers” collectively controlling access to the digital economy, in reality the four companies have very different businesses that raise very different antitrust questions and will lend themselves to very different antitrust solutions.
Take, for a start, Apple. It is the most valuable company in the world, as of this writing worth more than $2 trillion. It’s also the most profitable company in the world. And yet, when it comes to discussions of antitrust and Big Tech, Apple often seems like an afterthought. In Wu’s book, Apple barely makes an appearance, and in Senator Amy Klobuchar’s new book, Antitrust, which is a ringing call for remaking and enforcing anti-monopolization policy, the discussions of Apple seem more cursory than central to her thesis.
That may be in large part because Apple has become a behemoth mostly on its own—while it has made plenty of acquisitions, its recent growth is mainly due to the simple fact that it has introduced three of the most successful and lucrative technology products in history, and that it has continued to convince customers to keep upgrading to the next generation of products. Even in this new world, it is not illegal to become hugely successful by building the proverbial better mousetrap.
To be sure, Apple has antitrust issues, which center on its requirement that all developers who are making apps for the iPhone and iPad sell their goods through the App Store, with Apple collecting a 30% fee. So it’s possible Apple will end up having to let developers sell directly to consumers, or even allow independent app stores. Even so, it could still collect a licensing fee from any app that wanted to be on the iPhone. And most users would, in all likelihood, continue to use the App Store regardless, if only out of habit and convenience.
So in the grand scheme of things, Apple wouldn’t seem to have that much to worry about from increasing antitrust pressures.
Amazon’s situation is more complicated. It, too, has the fact of organic growth going for it; while it has made its share of acquisitions, it has grown mostly on its own, driven by its relentless appetite for selling more, its huge investment in infrastructure, and its willingness to spend huge amounts of money in order to win and keep customers. Its biggest antitrust problem stems, paradoxically, from something it created itself: Amazon Marketplace.