Reining in Consumer Big Tech: Antitrust and Beyond

The U.S. House of Representatives recently released a long-anticipated report on the state of antitrust in consumer tech. It found that key gateways and highways online are heavily consolidated around a few Consumer Big Tech giants and that reforms of antitrust laws are needed to inject more competition into the internet.

But while the report’s recommendations are ambitious, they are not enough to take on all of the harmful effects to our culture, economy, and politics caused by consolidated consumer tech markets. One reason is that they do not tackle the law’s foundational shortcomings, which overly complicate the antitrust analysis and must be reformed. The other reason goes to the core of what modern competition laws are and what they are not, which requires looking beyond antitrust to other rules and regulations to rein in the broader societal consequences of bigness in the digital economy.

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How tech forces a reckoning with prediction-based antitrust enforcement

Tech is testing the limits of a half-century experiment in antitrust in which predictions made by experts have guided enforcement of the law.

Over that time, it has become increasingly common for the lawfulness of a given merger or monopolist’s conduct to be decided by predicting its actual effects on competition. On first blush, it seems a sensible approach. And ostensibly a rational replacement of what came before it, which was a set of hard-and-fast rules that trained antitrust on the protection of market conditions believed conducive to competitive outcomes, with little regard for how competition was actually impacted in an individual case.

But lawyers and economists may have jumped the gun in thinking themselves up to the task. A half decade of experience with the predictive approach to antitrust, bolstered by research in uncertainty and decision-making in other fields, suggests that little more than wishful thinking may support the premise that predictions about complex markets can be accurate enough to guide competition policy. And to make matters worse, the prediction-making apparatus has been focused exclusively on an overly restrictive subset of competition concerns that only serve to help consumers to buy more things for less money. The result has been the consolidation of large swaths of the economy.

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What an elusive remedy in the Google Shopping case says about the future of regulating big tech

The absence of an effective remedy in Europe’s seminal Google Shopping case nearly three years since the decision reveals much about the limits of antitrust laws and the need for a new frontier in tech regulation.

While the European Commission and Google fight it out on appeal over whether the company violated antitrust laws by using Google Search to promote its own comparison shopping service, a debate outside the courtroom focuses on the appropriate remedy in the case. The relief to date is not working the way it was expected to, raising serious questions about the underlying theory of the case and the limits of competition laws. Much is at stake as the rest of the world watches to see whether Europe’s quagmire means that antitrust laws need to be pushed further in order to deal with digital platforms, or if their limits reveal the need for new forms of tech regulation.

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Coronavirus and tech regulation in a new normal

Two month ago, plans to ramp up regulation of the digital economy under competition, privacy, and consumer protection laws looked like a head-first dive into the deep end of the pool. Now, as governments focus on keeping people safe and markets stable, a spotlight has been cast on the role of technology in our lives and economies. What might the coronavirus crisis mean for the future of tech regulation when restrictions subside and a new normal emerges?

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