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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Why industry regulation of tech is coming, and what it will look like

Shortcomings in antitrust enforcement are causing jurisdictions around the world to consider industry regulation of tech. But instead of sweeping utility-like regulation, so far those efforts are targeting specific sectors such as digital platforms and particular conduct that is outside the reach of traditional competition laws.  

After years of analysis, debate, and enforcement efforts, policymakers are realizing that competition laws cannot deal with many of the social and economic problems created by the proliferation of digital platforms. The EU, UK, Australia, and Japan are taking a hard look at sector-specific regulation to deal with issues related to data access and unfair business practices that overlap with antitrust issues but cannot be clearly regulated by those laws. These new rules will redefine the legal landscape for online platforms and be a testing ground for industry regulation in other tech sectors.

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Interim report signals expansive study of digital advertising by Japan’s JFTC

An interim report on a study of digital advertising done by the competition authority of Japan signals an expansive look at antitrust, data privacy, and consumer protection concerns sharing the hallmarks of recent enforcement against digital platforms in Europe.

Digital advertising platforms are services (offered by companies like Facebook and Google) connecting online publishers who want to sell advertising space to advertisers who want to pay to use that space. The interim report (which does not mention any specific platforms) contains initial factual findings from surveys sent to the various market players by the Japan Fair Trade Commission (JFTC).1

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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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