Antitrust Tech Hearing Unlikely to Prove Useful

Monday’s upcoming House Antitrust Subcommittee hearing featuring CEOs from Facebook, Amazon, Google, and Apple may turn out to have very little to do with antitrust. The orthodox antitrust cases against these tech giants are very weak because the U.S. standard for invoking action is consumer harm. In an industry that provides many services for free and innovates rapidly, and where market leaders compete vigorously against one another, proving consumer harm is a tough case to make. But there are many other concerns circulating around big tech right now that have nothing to do with antitrust law, including privacy, content moderation, election influence, and even general economic inequality. Don’t be surprised if members of the Committee focus more on those emotionally charged issues than on antirust criteria.

Facebook provides a useful example. The company has come under fire for its acquisition of Instagram. The accusation is that the world’s biggest social media platform gobbled up the challengers nipping at its heels to suppress competition. But when the consumer harm standard is applied, the question becomes, so what if it did? Facebook’s resources and expertise took the app from a growing, but modest, niche app to having a billion users world-wide as of 2018. Facebook grew the platform by constantly improving the user experience, attending to technical compatibility issues, and innovating despite concerns it might alienate their incumbent users with the changes. That doesn’t look anything like a monopolized market where you’d expect to see slowed innovation and inflated prices.

The bottom line is that a billion consumers have benefited from Facebook’s purchase of Instagram.

So what is Congress going on about? It’s likely that the hearing will just be an opportunity to score political points and, more concerning, lay the groundwork for changing the fundamental nature of U.S. antitrust law. Antitrust regulation already invites political theatre and rent-seeking by competitors. All of that will be on full display at Monday’s hearing. Subsequently, it’s likely that some Committee members will introduce legislation to expand antitrust law to protect competitors, address perceived social ills, and meddle with adjacent issues like data and privacy. All this would be to the detriment of the American consumer. No man can serve two masters and the same can be said of antitrust law; legislators would be wise to keep consumers the top priority.

Update: The hearing has been moved to Wednesday, July 29.