Re-upping this for no particular reason other than it reflects my views on how conservatives should think about antitrust policy. I'll be fleshing this out in more detail in writing soon.
Google took out a 2-page ad in the weekend WSJ to remind people of how much of our government and public institutions it has its tentacles in. National defense agencies, school districts, and local governments all share a single point of failure now.
Who elected Google?
Judge Mehta appeared exasperated with Google towards the end of Wednesday, saying they'd left him "in a pickle" by insisting on a closed session to discuss an exhibit that was not confidential but "embarrassing" so now all its context is sealed.
The biggest divide on the right today is over whether we ought to be more like George Bailey or Henry Potter. America needs more George Bailey conservatives.
Judge Mehta wisely observing that Google's ability to degrade search quality without suffering any appreciable loss of users is evidence of monopoly power, even if unexercised.
#USvGoogle
I cannot conceive of a more ignorant understanding of antitrust law generally, or this case specifically. Amazing that the tech companies pay for this stuff.
Tomorrow, the US Government is suing Google for being too popular. Yes, really. And the consequences could be the internet as we know it.
The government breaks everything it touches - do not let it break Google.
Here’s everything you need to know 🧵
1. This is the first major
This is Judge Leo Sorokin delivering what should have been a career-ending evisceration to for-hire economist Mark Israel in DOJ’s successful suit to unwind a partnership between American Airlines and Jet Blue.
Google called Israel as its economic “expert” today 😬
Amazon pursues a pay-to-play scheme forcing sellers to buy ads. Worse, many of these ads are junk ads that aren’t relevant to what users search for. Jeff Bezos and co. call these Junk Ads “defects,” and sellers pay big bucks for them. 2/15
Believing in limited government doesn’t mean you can’t use the government to protect people from bad things. That’s not limited government, that’s no government. Conservatives believe in ordered liberty, not anarchocapitalist libertarianism.
“Conservatives” who want to use big gov against tech companies they don’t like are utter fools.
Not only are they violating their principles of limited government, they’re actually empowering the very companies they dislike while also setting a precedent for big gov to be used
A common talking point among Big Tech defenders is that we need to protect American companies to better compete with China, et al. It's the "national champion" approach.
If you want to know what that looks like in practice, look no further than Boeing.
I’m struggling to see how Carl is being anything but disingenuous here. Epic only sought injunctive relief; it didn’t ask the court to give it a dime. Google objects, however, precisely because it cares about … getting more money. Shills gonna shill, I guess.
In Epic v Google, it's all about the $$$ for Epic
This should come as no surprise to anyone, but Epic is not a philanthropic entity that is only brining lawsuits against Apple and Google out of the goodness of Epic's heart, it's about Epic wanting more money.
There is nothing
I really don’t get this memetic phenomenon of mocking every effort to stop direct competitors from merging just because they’re not trillion-dollar businesses. Maybe FTC ends up losing, but it was a unanimous, bipartisan vote, not some nefarious power grab.
To all the lobbyists who were beating down my door for two years to insist that FTC’s investigation and lawsuit against Illumina/Grail was unconscionable, and who yelled at me when I said FTC had a plausible case: I told you so.
Consumers: I don’t like that you censor me on your platform.
Big Tech: Then build your own!
….
Big Tech: We want to buy this company.
Antitrust enforcers: Build your own.
Big Tech: 😭🤬😱
Judge Mehta ordered DOJ to remove the exhibits they had posted about the case on the Justice Department's website. He said he will make a ruling in the morning on whether the public can continue to gain access to exhibits.
The fact that it would be difficult to unseat an entrenched monopoly is evidence of the monopoly itself, not a defense. This is a recurring theme, unfortunately. Google wants to treat barriers to entry of its own making as evidence of consumer preference.
Amusing to see people suggesting that the 2010 merger guidelines, which cite precisely 0 legal or economic authorities, were grounded in the law and economics, but that 2023 merger guidelines are trying to change the law to fit the agencies’ wishes because they…cite to case law.
🚨NEW: Apple didn't allow
@jonstewart
to interview
@linakhanFTC
or discuss certain topics when his show was on AppleTV+
A clear example of concerns
@JusticeATR
highlighted in its antitrust suit.
Apple can use its power to exercise control over content it doesn't approve of.
The mindset that “Juries are bad at deciding technical cases” is a perfect encapsulation of such much of what is wrong with our antitrust enforcement regime.
Google's move is smart, and calculated to produce a better outcome. Juries are bad at deciding technical cases, and further they do not have the authority to order a breakup. The "law" (damages) and "equity" parts of the case are best separated; this motion facilitates that.
The Justice Department's major new case against Apple completes the Biden administration's quartet of antitrust lawsuits aimed at the companies that have defined the tech industry's last 20 years.
Personal update: After 3 years on the hill, I’m returning to private practice! I’ve teamed up with my friend, Brandon Keessin, to form
@KressinMeador
. We’re a boutique antitrust firm advising clients on complex competition matters, from compliance and litigation to advocacy.
Nothing to see here, just A Great American Tech Company™️ paying billions of dollars for something it insists doesn’t matter and could get for free anyway. I’m sure it has nothing to do with foreclosing market access to competitors.
A thought on jury trials in antitrust cases: If antitrust law is really about consumer welfare, doesn't it make sense to hear straight from consumers themselves what they think about the market? 1/2
This part cracks me up. Is it “backward-looking” when we arrest and convict murderers? I guess we should let the murderers go and just worry about the next crime 🤔
Finally, Google claims this case is "backward-looking." That's absurd. Law enforcement must bring evidence of past behavior to prosecute. That's literally how law enforcement works:
Google violated the law and the company is *finally* being prosecuted. 🚓 (9/9)
"The FTC's market definition also entirely disregards any online store that has a broad range of offerings but adopts a different model for appealing to customers, such as Shopify, or the recently ascendant discount sellers Temu and Shein."
@JGWithrow
“Apple is now banned from selling its latest Apple Watches in the US”
via
@Verge
“Apple can no longer sell the Watch Series 9 and Watch Ultra 2 in the US after President Joe Biden’s administration declined to veto the ban today.”
@emroth08
with the story - President Biden's
Cue testified (paraphrasing) that ATT (“ask not to be tracked”) is something ok in the user prompts as the average user understands “tracking” so can be asked up top. But they wouldn’t understand search choice. This is laughable to me. /6
A lot of talk about Big Tech focuses on antitrust, and rightly so. But I think some of the most interesting legal developments in this space will happen in the consumer protection arena.
I’m suing social media giant Meta for fueling a youth mental health crisis in America. Meta deliberately prioritized profits over the safety of our children, refusing to take corrective action.
Meta knew.
Meta ignored it.
Meta will be held accountable.
Just went to Walmart to shop for my family of 8, and there was not a single cashier on duty. Self checkout only for hundreds of dollars of groceries. Almost makes you want to reconsider the merits of Robinson-Patman…
Google: People use Google because they want to. We compete on the merits.
Also Google: We need to pay tens of billions of dollars to make it harder for people to use other search engines.
#USvGoogle
It's gonna be funny when the business community that hates Lina Khan ends up with a single director FTC run by ... Lina Khan. And with no Republican minority commissioners providing oversight.
What is Facebook’s response to the ugly stories on how it tracks and manipulates children? To apologize? To obey the Federal Trade Commission’s order to stop? Nope.
Zuckerberg just asked a court to declare the FTC unconstitutional.
Live Nation’s response to DOJ’s suit to undo its acquisition of Ticketmaster is one of the most unhinged PR screeds I’ve ever seen. From claiming it is constrained by Big Tech to blaming “artist popularity” for its exclusionary conduct and monopoly rents, it is divorced from
Biden's FTC loses AGAIN in court!
But the process itself is the punishment.
Let's chalk up another loss for FTC Chair Lina Khan. How many is that now? We've lost count.
Several months ago, activist Chair Khan convinced her colleagues to block the Illumina-Grail acquisition—a
The District Court decision denying FTC a PI to block Microsoft/Activison cited Brown Shoe at least 6 times. Yet it was celebrated by the same people now chicken littleing over Brown Shoe being cited in the new guidelines. Spare me.
So Murphy's argument is that companies like Apple choose Google Search as their default search engine because it's simply a better search engine.
But to the extent it's a better search engine, DOJ has argued that's because of the scale it acquires through default agreements. /3
This is no different than big incumbents demanding their smaller competitors be heavily regulated so the incumbent doesn’t have to worry about needing to actually produce something its customers want.
Google knew two things: 1) it could win search users even without being the default; but 2) if it bought up the default status it would starve its competition of a chance to get off the ground.
#USvGoogle
Recent reporting indicates DOJ could soon file an antitrust suit against Live Nation Ticketmaster, a critical step in holding it accountable for anticompetitive business practices. 🧵
BIG news from this week: the
@TheJusticeDept
is preparing to file an antitrust lawsuit against Live Nation-Ticketmaster! This is an important step in restoring competition and protecting fans.
Read our full statement to learn more.
This may be my philosophy major bias, but I don’t trust technologists and engineers to define “human flourishing” for all of society. Read Aristotle. Go to church.
As a society, we have a choice. Will we encourage advancements to grow and unlock human flourishing, or will we freeze these technologies in stagnancy and let fear win?
The stakes can’t be any higher.
The TikTok bill doesn't ban speech, it bans China, Russia, Iran, and North Korea from controlling a platform used for speech in America. People describing it otherwise either haven't read the bill or aren't acting in good faith.
In antitrust, like so many other areas of public life recently, we've tried the "trust the experts" approach and it's gone horribly wrong. If we really believe this is about protecting consumers and ensuring markets reflect their choices, we should trust their judgment. 2/2
We’re talking about upending antitrust law & blowing up popular services over things measured in seconds & slight hand movements. It’s an exponentially greater burden to move between stores than to move between/within websites. Yet, here we are with this shameless rent seeking.
Ferguson goes on a long discussion of Bork's interpretation of antitrust law, and offers a very gentle pushback suggesting that not everything is an originalist framework. Says just price effects were not Congressional intent with the Sherman Act.
Google's lawyer responded that Google would need to do this for a significant period of time in a way that people notice, and still not see substitution, in order to infer monopoly power.
I don't think that experiment plays out the way Google thinks it does...
Judge Mehta wisely observing that Google's ability to degrade search quality without suffering any appreciable loss of users is evidence of monopoly power, even if unexercised.
#USvGoogle
I cannot understate how incredibly dangerous it is to constantly describe every court decision in terms of picking sides in a political fight, rather than interpreting the law.
Thomas, Kagan, Gorsuch, Kagan, and Sotomayor provided the 5 votes to block the power of big agribusiness. It's pretty disturbing that the newest SCOTUS Justice Ketanji Brown Jackson ruled with Alito and Kavanaugh in favor of big pork producers.
An Apple lobbyist actually told a Senate staffer that they would have locked down MacOS the same way they control iOS if they had it to do all over. They tried to walk this back when it came up during a briefing before staffers from multiple GOP offices.
@TimSweeneyEpic
@alisabets
Next thing you know, Apple will start requiring a cut of every online purchase that is made while using Safari.
Are they taking 27% of every purchase that someone makes via the Amazon app?
It never ceases to amaze me how even the supposedly most sophisticated, “elite” M&A firms fail to consider antitrust risk before deal execution. This is malpractice.
I was incredibly humbled by
@SenMikeLee
's very kind words this morning as he bid me farewell ahead of my departure from the Senate at the end of the month.
Admirable intentions, but seven competitors sharing information on which customers they’ll refuse to serve seems…..problematic.
CNBC: Largest U.S. sportsbooks join forces to tackle problem gambling
Getting closer to real sideloading! Still tons of problems (€0.50 fee, still need to be compliant with Apple BS rules, etc), but it's clear that the EU is chipping away at the ridiculous malicious DMA compliance that Apple announced in Jan.
Is it too much to ask for a world in which corporate shills don’t treat “consumer welfare” like some shamanic incantation that wards off any antitrust scrutiny?
If passed, KOSA’s implicit requirements would make businesses to collect vast amounts of data on all users—adults and children alike.
Congress should say NO to KOSA.
I'd be more willing to entertain the idea of "national champions" if all of our putative national champions weren't falling over themselves to do the bidding of the Chinese Communist Party.
This is bad faith analysis. What Dan describes as “near dispositive” in the new guidelines is actually the same kind of presumption in Baker Hughes that he attempts to contrast it with.
A thread on the new Merger Guidelines, responding to
@matthewstoller
,
@sandeepvaheesan
,
@musharbash_b
and others. Judge for yourself whether this is because I spent the better part of 42 years representing corporations, before retiring.
After a break came the stunning revelation that Pichai had at times labeled emails as “privileged” and copied Google CLO Kent Walker when the email was not actually about legal advice and he only wanted to “keep it confidential.”
Just remember: The people telling you that KOSA requires tech platforms to engage in censorship are the same people who said you were crazy to think tech platforms were censoring conservatives. And Big Tech paid them to say it both times.
We know Meta/Facebook entered into an agreement with Google that saw Meta get out of the ad tech game, now it is accused of having done the same with Netflix and video streaming.
“[T]here is a simple economic rationale for the contract: noncompetes encourage both parties to invest in the employee-employer relationship, just like marriage contracts encourage spouses to invest in each other.” –
@BrianCAlbrecht
,
@LawEconCenter
Having a product consumers like and shielding it from competition through exclusionary conduct are not mutually exclusive. That’s the entire premise of monopoly maintenance.
Set aside the plagiarism question, the bigger problem with AI in education is that using AI *is not critical thinking.* This isn’t learning, and teachers who encourage it are failing their students. Do we really want a generation of lemmings who need tech cos to think for them?
DISTRICT COURT HALTS UNCONSTITUTIONAL ARKANSAS LAW IN NETCHOICE V. GRIFFIN
CONTACT: Krista Chavez, press
@netchoice
.org
FAYETTEVILLE, Ark.—Today, the U.S. District Court for the Western District of Arkansas-Fayetteville Division halted Arkansas’ unconstitutional social media age
Struggling to think of something more patently anti-democratic than calling on courts to ignore the text of carefully written statutes because you're big mad that they're carefully written to accomplish policy goals you don't like.
TPA should really stay in its lane and not embarrass itself by misunderstanding how antitrust law works. Ticketmaster fees are not a question of demand from fans to see shows; they are a product/evidence of monopoly power. And fan demand certainly does nothing to explain or
🎶Department of Justice Antitrust Suit Against Ticketmaster and Live Nation Strikes the Wrong Note🎶
WASHINGTON, D.C. – Today, the Department of Justice (DOJ) and 30 states announced a long-awaited antitrust suit against Ticketmaster and its parent company, Live Nation. The
No view on the merits, but tactically speaking if you’re trying to stop a deal based on a potential competition theory, it’s probably best not to describe the industry as “characterized by a high degree of growth and innovation” in your press release.