The largest Internet companies are abusing their market dominance to “censor” political conservatives and downrank their content, President Trump has alleged in a weeks-long rebuke of once-sacrosanct Silicon Valley.
Although there’s no indication yet of government action, there’s a clear avenue to challenge the companies using anti-trust law, particularly against ad giants Facebook and Google, which along with Twitter have been the subjects of Trump’s criticism.
Presidents generally aren’t involved in antitrust litigation, but there are historical examples, notably under President Theodore Roosevelt, who directed his Justice Department’s pioneering use of the Sherman Antitrust Act of 1890 against large industrial firms.
Experts say agencies that enforce antitrust law make their own decisions, but that politics could have some influence.
“I think that if the president decides he wants to go full-on Teddy Roosevelt, he faces some institutional problems,” said attorney Allen Grunes, who worked more than a decade in the Justice Department’s Antitrust Division, which shares an enforcement role with the Federal Trade Commission.
“The agencies are going to keep doing things the way they have been doing them for the last 20 years,” Grunes said. “Having said that … the DOJ was able to successfully go after Microsoft for monopolization in the ‘90s. The DOJ was willing to throw a ton of resources into that case. So there is nothing inherently impossible about making a case against one of the large tech firms if the evidence is there and the agency is willing to devote the resources to it.”
Whether a case could be made rests on determinations the firms engaged in anticompetitive practices, such as predatory pricing to drive out smaller rivals. In the case of software giant Microsoft, internal directives to strategically “cut off the oxygen supply” of an Internet browser rival proved helpful to prosecutors.
Grunes said Republican administrations recently have been less inclined than Democratic ones to enforce antitrust law, but that could change under Trump.
“The current difference between Republicans and Democrats really began with the Reagan administration,” he said. “The time may be right for some recalibration.”
There’s an opportunity for unusual alliances on the issue. In New York, left-wing state attorney general candidate Zephyr Teachout is vowing to lead a multi-state antitrust investigation of Facebook and Google. Libertarian Sen. Mike Lee, R-Utah, meanwhile, sought to review the FTC’s decision to close an antitrust probe of Google, despite a 2012 report recommending legal action, following visits by company executives to the Obama White House. Lee leads the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy & Consumer Rights.
“The irony and difficulty is, there may be a perfectly credible antitrust case against Google, and Facebook raises issues of control over data that many people who are not friends of Trump would like to see explored in an antitrust context,” said Eleanor Fox, a trade regulation expert at New York University’s law school.
“Just because Trump might hate Google or Facebook should not give them antitrust immunity,” she said.
George Hay, a former Justice Department antitrust expert who teaches at Cornell University, said “Facebook’s notoriety might make people look more closely, but the DOJ would not bring a case they thought was without merit.”
The White House has not yet put forward a policy recommendation, and an administration source told the Washington Examiner recently that they were unaware of any internal dictates to devise regulatory or legislative changes.
If Trump turned to antitrust enforcement, he might find difficulty influencing the federal bureaucracy, unlike when Roosevelt in 1902 worked with Attorney General Philander Knox to sue the Northern Securities Company and one of the nation’s wealthiest men, J.P. Morgan, winning a 1904 ruling from the Supreme Court breaking up a railroad monopoly. A century ago, the Justice Department lacked a dedicated Antitrust Division, and Trump has struggled in vain to influence the actions of Attorney General Jeff Sessions, whom he openly regrets nominating.
Addressing Trump’s criticism, tech companies deny political bias in removing accounts of controversial commentators, or in limiting the reach of social media posts and news content, though skeptics offer anecdotal evidence to the contrary.
“Media companies, including a number of tech companies, have a lot of power to shape public opinion and even to influence how people vote,” Grunes said. “It is potentially a big problem when most people’s news and information comes from only a few sources. But in fairness, this was true when there were only three big television networks.
“Tech firms present special challenges,” Grunes added. “Competition may look somewhat different in high tech industries. A number of tech markets are pretty highly concentrated, with only one or two major competitors. That doesn’t necessarily mean competition isn’t working, but it perhaps does mean that there is a need to be a little more vigilant when it comes to conduct by those companies.”
