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Reining in the tech industry: Antitrust, regulation or both?

DC panel discusses issues in 'Big Tech'

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Photo courtesy Pixabay

June 14, 2022

What happens when Big Tech becomes too big? And how do regulators ensure that competition is fair and that consumers are protected in an industry that remakes the world overnight?

The world’s largest technology companies have become too big, with too much power and influence in the economy, according to critics, without much scrutiny or oversight. Now, leaders in the U.S. are playing catch up — with the Federal Trade Commission and U.S. Department of Justice set to decide which of the tech major players are practicing balanced business competition.

In a recent panel discussion hosted by the Sandra Day O’Connor College of Law at the ASU Barrett & O'Connor Washington Center, former U.S. Attorney General William Barr, Principal Deputy Assistant Attorney General Doha Mekki and ASU Law alumnus and antitrust pioneer Joe Sims joined ASU Law Professor of Practice David Gelfand to discuss regulation and antitrust issues in the tech industry.

Former Attorney General Barr focused a chapter of his recent book, “One Damn Thing After Another: Memoirs of an Attorney General,” on antitrust. He described Big Tech as posing three interrelated problems. The first issue is about the sheer economic power that many large companies have in a particular market, which is a typical antitrust concern of market power economics. The second problem is the exploitation of personal data. The third problem is arguably the most complicated, as it is related to the structure of the tech industry.

“The third problem is the nature of the marketplace itself, which is not just for good, or bad. This is the marketplace of ideas,” Barr said. “This is the village green where we exchange information. But I was struck, by my time in government, by the consensus that has emerged in our government over the fact that this is a serious problem.”

But Barr believes that regulators ought to tread lightly in dealing with tech.

“I think antitrust is a general tool that can be deployed in any and all industries,” he said. “But I think if we start tinkering with it to address some of the unique problems we face in the tech industry, we could end up doing more mischief than any good.”

One of the many challenges facing regulators is making sure that correcting for past inaction does not strangle future innovation.

“The question seems to be, how do we make sure that as we think about enforcement, or regulation, or some combination of the two, that we don't interfere with the next generation of innovations that are going to bring all those next great things to consumers?” Gelfand said.

Mekki, who leads DOJ’s antitrust division, said that laws must be flexible enough to account for changing market conditions.

“It is true that the law is sometimes slow to catch up to business. What is interesting about the antitrust laws is that they are remarkably flexible. After liability existences, if any of the current cases actually get to the liability binding, there'll be a remedy days after that, which I think has the potential to be tremendously forward, especially on the subject of structural fixes,” Mekki said.

Sims, a nationally renowned antitrust lawyer and former partner at Jones Day, a leading law firm, agreed, though cautioned that the speed of change in tech is faster than for any industry in the past.

“I think that the real issue is the speed of change. And the speed of change in the internet world is much faster than it was in the industrial market,” Sims said. “We need to have a serious, detailed discussion based on the facts of analysis. Before we can come up with what hopefully could be reasonable, legal or regulatory solutions to some of the problems that people see.”

The discussion was part of ASU Law’s newly established Antitrust Law Program, created in February and led by Gelfand. The Antitrust Law Program will increase thoughtful debate and create opportunities for the antitrust bar to learn about and debate legislative and regulatory proposals, and will provide students educational opportunities in an area that is in high demand from potential government and private employers.

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