The great antitrust challenge of the next decade will be Big Tech, an arena controlled by a few consolidated players who wield massive power over who can communicate what message. That this power is used frequently and with an agenda goes without saying.
So naturally, the new Biden administration is meeting the challenge by hiring a lawyer who once represented Big Tech to lead one of the federal government’s key antitrust divisions.
According to a Thursday report from The American Prospect and The Intercept, attorney general nominee Merrick Garland wants Susan Davies, the lawyer who represented him during his failed Supreme Court nomination, to head up the Department of Justice’s antitrust division.
Davies, who also served under Garland during their time in the Clinton administration, represented Facebook in a 2012 lawsuit against the maker of a third-party app for the social media platform that relied on an advertising-based model to cover costs.
Facebook would ban the app and lure its clients away, according to Law360. Not only that, users had to disable all products by the app maker — Sambreel Holdings LLC — causing it to lose a million users within a week.
Davies is one of those rare picks who should aggravate both the right and left, even while it sounds all the right notes in the squishier parts of the establishment mire.
She represented Facebook in her capacity as a lawyer with Kirkland & Ellis LLP, described by The Intercept’s Ryan Grim and The American Prospect’s David Dayen as a “right-leaning firm” that was “at one point home to Robert Bork, a now-deceased conservative legal scholar and rejected Supreme Court nominee; Kenneth Starr, best-known for his role as independent counsel during Clinton’s impeachment and who has now joined Trump’s impeachment team; conservative Supreme Court Justice Brett Kavanaugh; John Bolton, a former national security adviser for President Donald Trump; Alex Azar, Trump’s secretary of health and human services; and Trump’s Attorney General William Barr.”
They wrote that the rest of Davies’ client roster “is equally worrying to opponents of concentrated power, as she has spent most of the last decade working on behalf of major mergers, fending off antitrust enforcement, and, as her law firm bio puts it, ‘frequently interact[ed] with regulators and policy makers on behalf of corporate clients.'”
Facebook is one of two Big Tech firms being sued by the federal government over antitrust concerns. The Federal Trade Commission sued the social media giant in December, as CNBC noted, following its purchase of photo- and video-sharing social network Instagram and messaging platform WhatsApp. (Google is also being sued by the DOJ.)
“Since toppling early rival Myspace and achieving monopoly power, Facebook has turned to playing defense through anticompetitive means,” the FTC’s lawsuit alleges.
“After identifying two significant competitive threats to its dominant position — Instagram and WhatsApp — Facebook moved to squelch those threats by buying the companies, reflecting CEO Mark Zuckerberg’s view, expressed in a 2008 email, that ‘it is better to buy than compete.'”The U.S. government, along with 46 states’ attorneys general, is seeking to force Facebook to divest itself of both platforms.
It’s worth noting that one of President Joe Biden’s picks to fill a commissioner role at the FTC, Columbia University law professor Lina Khan, is a critic of Big Tech and has called for breaking up the giants.
According to Recode, Khan is considered a “frontrunner” for one of the two positions on the five-person panel that Biden has to fill.
While conservatives are unlikely to express unfettered joy at the fettering Khan would likely endorse as a commissioner, it could theoretically beat having an ally of Big Tech heading up the DOJ’s antitrust unit.
Then again, you should probably expect a lot more Susan Davieses than Lina Khans in the new administration. As Ars Technica reported shortly after Biden was declared the winner of the election, Biden’s transition team was well-stocked with tech industry types, including plenty of names from the Obama administration.
Big Tech hegemony seemed much less of an issue five years ago, though. At this point, there are roughly two or three major players per field. Facebook and Twitter essentially dominate the social media landscape, something we became acutely aware of in the days following the Capitol incursion when President Donald Trump and numerous others found themselves digitally homeless.
Build your own platform, right? Ask Parler how that went. Even when the free speech-centric social media app favored by the right returns from losing its web hosting, one doubts that either Apple or Google will allow it back into their app stores, no matter how tight Parler’s content moderation gets.
Of course, nobody particularly expects the Biden administration to focus on free speech issues. Why would it?
The left has all the free speech it could ever want — and those who don’t like the status quo want the government involved in more stringent content moderation, ensuring no act of political expression too conservative for a Mitt Romney speech ends up on Twitter.
That said, both Republicans and Democrats ought to realize the size and power agglomerated by just a few companies is unprecedented in scope in the history of our republic.
One suspects Joe Biden and those around him realize it. The problem is that it suits them just fine.
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