The Battle That Will Define Big Tech for Decades
By: Will Oremus
Tags: Technology, Politics, Google, Pattern Matching, Antitrust

The Battle That Will Define Big Tech for Decades

Google’s antitrust case won’t reshape the industry. But it’s the start of something that might.

Photo: VIEW press/Getty Images

The Department of Justice’s antitrust lawsuit against Google got a lot of attention this week, and understandably so. It mirrors the landmark antitrust case against Microsoft two decades ago, which stands as the prototypical example of the U.S. government grappling with a big tech company’s power.

But it is also, in many ways, a narrow case: It focuses exclusively on Google’s dominance of internet search and search ads, and rests on established laws and precedents. Even if successful, it’s unlikely to significantly curtail the massive reach or influence of Google’s trillion-dollar parent company, Alphabet. And it has nothing to say about other pressing issues raised by the culture and commercial ascendance of internet platforms, such as their personal data collection, digital surveillance, engagement algorithms, implicit biases, concentration of wealth and power, employment practices, or control over the flow of online information.

I’ve already written in depth about the lawsuit itself, so for this week’s Pattern Matching, I thought it might be useful to step back and review the big picture of tech regulation, so as to better perceive the shape and scope of the single puzzle piece that is the Google antitrust case.

When you start to realize how many other pieces there are, and how far they all are from coming together, it becomes clear that this will be a work in progress for not just years, but possibly decades to come. But its formative salvos may help to shape its course — and those are happening now.

The Pattern

The battle of Big Tech is just beginning.

History tells us that trust-busting takes time. Federal antitrust law has its beginnings in the 1880s, when the rise of sprawling conglomerates such as Standard Oil sparked demand for protection of both consumers and independent businesses. The Sherman Anti-Trust Act of 1890 laid the legal groundwork for federal intervention, and the first trustbusting era began in earnest with the 1904 breakup of Northern Securities, a railroad trust formed by the mergers of some of the companies largest lines. The 1914 Clayton Act broadened the scope of antitrust law, though the initial wave of American trustbusting subsided shortly afterward due to World War I. Columbia Law School professor Tim Wu’s 2018 book The Curse of Bigness lays out this history and its relevance to Big Tech today. (It is that original, 130-year-old Sherman Act that Google now stands accused of violating.)

Federal antitrust law has its beginnings in the 1880s, when the rise of sprawling conglomerates such as Standard Oil sparked demand for protection of both consumers and independent businesses. The Sherman Anti-Trust Act of 1890 laid the legal groundwork for federal intervention, and the first trustbusting era began in earnest with the 1904 breakup of Northern Securities, a railroad trust formed by the mergers of some of the companies largest lines. The 1914 Clayton Act broadened the scope of antitrust law, though the initial wave of American trustbusting subsided shortly afterward due to World War I. Columbia Law School professor Tim Wu’s 2018 book The Curse of Bigness lays out this history and its relevance to Big Tech today. (It is that original, 130-year-old Sherman Act that Google now stands accused of violating.) For all the DOJ’s efforts to keep it simple, the Google case will likely take years to resolve. The Microsoft case on which it was modeled started with an inquiry in 1992, began in earnest with a lawsuit filed in 1998, and it was finally settled in 2001. By that time, the tech sector looked very different than it had at the outset: The World Wide Web and consumer internet had exploded, sparking the tech boom that birthed Yahoo, Google, and Netscape, to name a few.

The Microsoft case on which it was modeled started with an inquiry in 1992, began in earnest with a lawsuit filed in 1998, and it was finally settled in 2001. By that time, the tech sector looked very different than it had at the outset: The World Wide Web and consumer internet had exploded, sparking the tech boom that birthed Yahoo, Google, and Netscape, to name a few. That dynamism — the stunning rises and swift falls of tech startups in the consumer internet’s heady first two decades — is what helped to convince regulators to take it easy on internet companies for the past two decades, clearing the path for the companies we now know as Big Tech to corner huge swaths of the industry. In turn, the largest tech firms have managed to subdue that market dynamism from which they emerged . Amazon, Apple, Facebook, and Google built their empires on innovative, user-friendly products. But they’ve fortified those empires through acquisitions, network effects, lock-in tactics, and bottomless troves of cash and data that enable them to copy and overwhelm upstart rivals.

. Amazon, Apple, Facebook, and Google built their empires on innovative, user-friendly products. But they’ve fortified those empires through acquisitions, network effects, lock-in tactics, and bottomless troves of cash and data that enable them to copy and overwhelm upstart rivals. Big Tech’s dominance today has reached a level with few historical parallels, but the trusts of the Gilded Age offer perhaps the closest analogy, in terms of concentration of economic power and control of distribution networks. Accordingly, any serious reckoning with Big Tech will require far more than an antitrust lawsuit or two. Rather, as legal scholars such as Lina Khan and Tim Wu have argued, it will require a fundamental shift in the government’s posture toward the industry, and either a wholesale reinterpretation of existing laws or a battery of new ones. We’re now in the early stages of such a process — though how successful it will be is an open question.

Rather, as legal scholars such as Lina Khan and Tim Wu have argued, it will require a fundamental shift in the government’s posture toward the industry, and either a wholesale reinterpretation of existing laws or a battery of new ones. We’re now in the early stages of such a process — though how successful it will be is an open question. In the realm of antitrust enforcement, Google is the first shoe to drop, but it probably won’t be the last. The Federal Trade Commission is nearing a decision on whether to file a lawsuit against Facebook , the Washington Post’s Tony Romm reported on Thursday. That suggests the FTC’s staff believes it has grounds for a suit, but it will need approval from three of the agency’s five commissioners. Three of those are Republicans, including the Trump-appointed chair, Joseph Simons. While the contents of any such suit have been closely guarded, it seems likely they would focus on Facebook’s penchant for either acquiring or copying rivals to maintain its social networking dominance. Apple and Amazon are also facing possible federal antitrust probes, and all four tech giants are embroiled in various civil, state, and EU cases.

, the Washington Post’s Tony Romm reported on Thursday. That suggests the FTC’s staff believes it has grounds for a suit, but it will need approval from three of the agency’s five commissioners. Three of those are Republicans, including the Trump-appointed chair, Joseph Simons. While the contents of any such suit have been closely guarded, it seems likely they would focus on Facebook’s penchant for either acquiring or copying rivals to maintain its social networking dominance. Apple and Amazon are also facing possible federal antitrust probes, and all four tech giants are embroiled in various civil, state, and EU cases. The enforcement of existing antitrust laws could constrain some of the more aggressive business practices, and might clear marginally more space for rivals to emerge in certain sectors. But any such rivals would still face a daunting disadvantage in competing with established titans, which own the fields on which the other tech companies play. Unless courts begin to take a much broader view of those laws and get far more aggressive in their remedies, Big Tech as we know it will not change.

The recommendations of last month’s House antitrust report — including tough new standards for acquisitions, and “structural separations” that would prevent dominant tech companies from competing with third parties on the platforms they own — would go a long way, rewriting the rules of competition in digital markets. Yet even then, future platforms would be playing by many of the same rules and face the same incentives, likely leading to similar business models and practices. There’s no reason to think modern life would be substantially different if Bing became the default search engine on Safari, iPhone users could download Android apps, Snap gobbled some of Facebook’s market share, or Amazon was forced to spin off AmazonBasics.

That’s why a full reckoning with tech’s power will require a wave of new laws, focusing not just on competition but on data privacy, surveillance, online speech, and labor relationships . Some of those are in the works, and a few are even on the books already at the state and municipal level, though with mixed results.

. Some of those are in the works, and a few are even on the books already at the state and municipal level, though with mixed results. California has been an early leader, passing bellwether laws on data privacy and the relationship between employers and workers in the gig economy. Both, however have been a mess to implement, and both are the subject of referendums on the November ballot. Proposition 22 and 24 are an object lesson in the difficulty of getting legislation right, when it comes to the novel societal problems introduced by technology. If there’s an upside to the dearth of serious national legislation on these issues so far, it’s that the lessons learned from these state-level battles — and from the EU, for that matter — could be used to inform better-crafted federal laws. But regulating tech was never going to be easy, nor quickly accomplished.

If there’s an upside to the dearth of serious national legislation on these issues so far, it’s that the lessons learned from these state-level battles — and from the EU, for that matter — could be used to inform better-crafted federal laws. But regulating tech was never going to be easy, nor quickly accomplished. One of the trickiest realms for regulation is online speech and content moderation. In a hyperpolarized era, both left and right can vividly see the problem with platforms such as Facebook, Google, and even Twitter controlling both what we can say and what we see. That has led to calls from both sides to amend or repeal Section 230, the statute that shields online platforms from liability for what their users post and how they moderate it. But their goals in doing so are opposite: Donald Trump wants the platforms to be sued for restricting users’ speech (for instance, when they fact-check his posts) while Joe Biden wants them held liable for propagating falsehoods (for instance, when they don’t fact-check Trump’s posts).

In a hyperpolarized era, both left and right can vividly see the problem with platforms such as Facebook, Google, and even Twitter controlling both what we can say and what we see. That has led to calls from both sides to amend or repeal Section 230, the statute that shields online platforms from liability for what their users post and how they moderate it. But their goals in doing so are opposite: Donald Trump wants the platforms to be sued for restricting users’ speech (for instance, when they fact-check his posts) while Joe Biden wants them held liable for propagating falsehoods (for instance, when they don’t fact-check Trump’s posts). If there is any single policy change that has the potential to reshape the internet in one fell swoop, it would be repealing Section 230. But it’s doubtful the result would be to anyone’s liking. Perhaps recognizing that, actors on both sides are pushing more modest changes: Trump’s FCC is working on rulemaking that would presumably constrain certain types of moderation, while this week two Democratic representatives proposed a bill that would remove the shield specifically for algorithmic amplification of certain harmful content. Legal experts I’ve talked to view both proposals as misguided, opening up a Pandora’s Box of litigation that likely only the largest could afford to defend against.

But it’s doubtful the result would be to anyone’s liking. Perhaps recognizing that, actors on both sides are pushing more modest changes: Trump’s FCC is working on rulemaking that would presumably constrain certain types of moderation, while this week two Democratic representatives proposed a bill that would remove the shield specifically for algorithmic amplification of certain harmful content. Legal experts I’ve talked to view both proposals as misguided, opening up a Pandora’s Box of litigation that likely only the largest could afford to defend against. In the meantime, Facebook this week announced that its long-in-the-works, semi-independent Oversight Board can begin hearing cases — though it won’t have time to play any meaningful role in the November election. As a solution to the problems of online speech, a panel of high-profile experts tasked with reviewing specific thorny cases one by one on a network of 2 billion people seems rather underwhelming. But Casey Newton in his Platformer newsletter makes a persuasive case that it’s, well, better than nothing. And I’d submit that online speech might be one realm in which poorly thought-out regulation has at least the potential to be, well, worse than nothing.

— though it won’t have time to play any meaningful role in the November election. As a solution to the problems of online speech, a panel of high-profile experts tasked with reviewing specific thorny cases one by one on a network of 2 billion people seems rather underwhelming. But Casey Newton in his Platformer newsletter makes a persuasive case that it’s, well, better than nothing. And I’d submit that online speech might be one realm in which poorly thought-out regulation has at least the potential to be, well, worse than nothing. It is possible — difficult, but possible — to imagine a future in which a handful of tech giants do not rule everything around us. For years, it was mostly activists and academics making the case that it’s a future we have to fight for. Narrow though it may be, what the Google antitrust suit symbolizes is that the U.S. government has rejoined the fight at last.

Undercurrents

Under-the-radar trends, stories, and random anecdotes worth your time.

A nonprofit newsroom is trying to audit Facebook and YouTube’s algorithms. The Markup, edited by former ProPublica investigative journalist and longtime thorn-in-Facebook’s-side Julia Angwin, said it has built a custom web browser that will collect data on users’ social feeds to build a profile of what news stories the social media platforms are amplifying. A statistically valid sample of 1,200 Americans will be paid to install it and share real-time data with the nonprofit, which promises to discard personally identifying information. But this week also brought a reminder that Facebook doesn’t always take kindly to researchers studying its platform without its permission: The Wall Street Journal reported on Friday that the company is trying to shut down an NYU research project that uses a browser extension to study the political ads that volunteers see. Facebook claims scraping data from its site is a violation of its terms of service.

The Markup, edited by former ProPublica investigative journalist and longtime thorn-in-Facebook’s-side Julia Angwin, said it has built a custom web browser that will collect data on users’ social feeds to build a profile of what news stories the social media platforms are amplifying. A statistically valid sample of 1,200 Americans will be paid to install it and share real-time data with the nonprofit, which promises to discard personally identifying information. But this week also brought a reminder that Facebook doesn’t always take kindly to researchers studying its platform without its permission: The Wall Street Journal reported on Friday that the company is trying to shut down an NYU research project that uses a browser extension to study the political ads that volunteers see. Facebook claims scraping data from its site is a violation of its terms of service. Spotify has launched a radio-style daily morning show, TechCrunch’s Sarah Perez reported. The three-host show, called The Get-Up, “will combine news, pop culture, entertainment and music,” and will be released at 7 a.m. ET each weekday. Unlike a radio show, however, the music is personalized to each listener; the show is arranged in the form of a playlist; and you can download and listen to it anytime. What’s interesting here is not the show itself, but the vision it represents of radio’s possible future.

Headline of the week

Gig workers’ only chance to pee is apparently an app

— Edward Ongweso, Jr., Motherboard

Tweet of the week

Idea of the week

An “App Store”-like model for feed-ranking algorithms, so that users of platforms such as Facebook can choose their own. (While it’s possible this is not a novel idea, I found it interesting that the person casually proposing it here was a designer at Facebook.)

— David Gillis, Facebook designer

Colored Pencil Drawing of the Week