Analyzing frames in Antitrust and Big Tech (Part I)

by Allie Mularoni

This report is the first installment of a two-part investigation into antitrust framing before and after the maelstrom of the coronavirus pandemic. We begin our analysis with the period between December 2019 and May 2020. These six months are significant in that they mark the beginning of what became a global spread of an infectious disease and also the end of left-populist presidential campaigns run by Elizabeth Warren and Bernie Sanders. Following the results of the Democratic presidential caucuses in February, March is a particularly revelatory month, as news framing around antitrust is situated within the context of the global pandemic.

The six-month period between December 2019 and May 2020 is broadly characterized by regulatory efforts to quell both judicial and public scrutiny of Big Tech’s market dominance. At the Department of Justice, attorneys general William Barr and Makan Delrahim lead antitrust probes into Facebook, Amazon, Apple, Microsoft and Google (or “FAAMG” in market jargon). Lawmakers have also steered the focus of the Federal Trade Commission (FTC), reflecting an increasing interest in reining in anticompetitive practices. Of the 135 viable articles surrounding Big Tech and antitrust, 73 articles cast antitrust regulation in either a positive or neutral-leaning positive (N+) light. Only 12 articles in the sample reflect a critical or neutral-leaning critical (N-) sentiment toward antitrust. The remaining 50 articles represent relatively unbiased messaging around the topic.

Despite the seemingly bipartisan involvement in the antitrust investigations, this analysis reveals the various political motivations behind Big Tech regulation. Where conservatives are predominantly interested in privacy and Big Tech’s alleged ideological “bias”, liberals are focused on consumer welfare. Key figures on both the right and the left see antitrust as a potential panacea for Big Tech’s political and economic dominance. 

While a portion of our sample chronologically coincides with the beginning of the coronavirus pandemic, only 21 articles explicitly mention the global health crisis. Equally significant is the fact that all but one of these 21 articles align with the pre-pandemic antitrust trend, demonstrating a general enthusiasm for antitrust regulation. To better understand the framing of antitrust vis a vis Big Tech, we identify the major sources, subjects, stories, signs, and solutions illustrated by the U.S. mediascape. 

Sources

In addition to attorneys general Barr and Delrahim, congressional lawmakers participating in various antitrust subcommittees represent the federal government’s investment in the problems manifesting from Big Tech’s market dominance. Along with the FTC Chairman Joseph Simmons, Rep. David Cicilline and Sen. Josh Hawley of the antitrust subcommittee are frequent media messengers representing the bipartisan agenda. The search sample (roughly 150 articles) also featured remarks from various research and investment firms, portfolio managers, economists, and legal experts. Tim Wu of Columbia University, Charlotte Slaiman of Public Knowledge, and former Obama-era attorney general Bill Baer are regularly cited in conversations around antitrust law and digital platforms. Several articles covered antitrust regulation in the European Union, specifically with regard to information coming from the Competition and Market Authority in the UK and Margrethe Vestager, Executive Vice President of the European Commission for a Europe Fit for the Digital Age.

Subjects

To the extent that key figures in the DOJ and the FTC serve as sources for describing the mechanisms involved in antitrust law, they (along with a number of state attorneys general) also occupy subject positions. AG William Barr and AG Makan Delrahim of the antitrust division are routinely profiled alongside the Big Tech companies themselves. Amazon, Apple, Google, Facebook, and Microsoft are consistently in opposition with smaller businesses, which struggle to compete with the innovations of billion-dollar companies. At times, even the faces of these companies surface in subject positions; the media profiles Jeff Bezos on more than one occasion in the sample, at times focusing on his and Donald Trump’s antagonism. Following this opposition are, on the one side, the tech lobbyists who claim that bigger data sets naturally lead to competitive markets, and on the other side, the consumer rights activists who see data collection as a potential abuse of power.

In the debates surrounding Big Tech, antitrust continuously illustrates divergent and oppositional subject positions. The Trump administration garners the media’s spotlight for its large-scale efforts to keep innovation stateside (though, as we will see in stories, the integrity of these efforts have been questioned). Presidential hopefuls Elizabeth Warren, Bernie Sanders, Andrew Yang, and Joe Biden have also been subjects of media scrutiny. Looking globally, Big Tech, despite being based in the U.S., invites competition with equally formidable digital economies. China and the European Union, particularly the UK, hold major stakes in both antitrust developments and increasingly competitive digital markets.

Stories

The theme of opposition carries into the many narratives circulating within the domain of Big Tech and antitrust. As we briefly mentioned in the section above, President Trump’s attacks on Big Tech appear to be partly motivated by personal vendettas (Trump has repeatedly expressed his disdain for Twitter co-founder and CEO Jack Dorsey and Amazon founder and CEO Jeff Bezos). Reporting for TechDirt, Karl Bode suggests that the Trump administration is “not above weaponizing antitrust for petty grievances” nor is it “interested in the rule of law.” It can then be argued that the DOJ under Trump’s rule is particularly motivated by his apparent gripe with Section 230 of the Communications Decency Act, which frees digital communication platforms from any liability in terms of user content and sharing behavior. But even this story presents an interesting complication. While Trump and conservatives in general are preoccupied with mending the alleged bias against conservative thinking, alterations to Section 230 would potentially address the problem of election manipulation (Foroohar, Financial Times). This is once again compounded by an interest in maintaining American Big Tech’s global reach, which is evidenced by the insertion of Section 230 into the new US-Mexico-Canada trade agreement (Foroohar, FT). The story of technological progress is also one of geopolitics.

In addition to the several iterations of “Big Tech vs. [insert opponent]”, we see evidence of inter-organizational conflict in relation to market practices. State legislators in California are pushing for more aggressive consumer privacy policies, where federal regulation struggles to instantiate a comprehensive framework. There is extreme divergence between and among the DOJ and FTC in approaches to antitrust regulation. The FTC maintains an interest in regulating anticompetitive behavior, but the definitions of competition are currently up for debate. AG Delrahim has stated that the work of the Justice Department is to ensure competition, not diversity. To add more confusion to an already entangled web of interests, Republican FTC Commissioner Noah Phillips remarks, “competition and privacy are often at odds” (Kendall, WSJ).

Driving these narratives of opposition are historical antecedents involving antitrust law, which appear insufficient in light of global techno-political infrastructure. Legal sources like Herbert Hovenkamp, a professor of law and business at the University of Pennsylvania, argue that “it will take nothing short of ‘radical’ legislation” to result in a behavior change from Big Tech (Swartz, MarketWatch). One of the reasons for the present judicial and legislative gridlock is the shift in assessing anticompetitiveness. Antitrust specialist and former Assistant Director of the Mergers II Division of the Bureau of Competition at the FTC, Ben Gris describes how data is troubling the traditional model of consumer welfare. According to Gris, while larger data set combinations typically correlate with increased competition, the volume and variety of data collected by tech companies “can be considered within the context of abuse of dominance” (Gris, Mondaq Business Report).

It isn’t until March 2020 that antitrust probes into Big Tech are cast in the same light as the coronavirus pandemic. Despite some reference to Big Tech’s “virus-era glow”, all of the articles in the sample remind readers why the antitrust probes were instantiated in the first place. From election manipulation to anticompetitive practices, the allegations against Big Tech outweigh the relief it has provided during the global health crisis. In fact, both Facebook and Uber have capitalized on economic vulnerability by merging and acquiring smaller businesses. Antitrust subcommittee chairman Rep. David Cicilline claims this behavior is representative of “pandemic profiteering” (Hatmaker, TechCrunch). Defenders of tech giants, on the other hand, note that the unprecedented financial power possessed by these companies have permitted acquisitions in the face of possible failure. As much as Big Tech creates “kill zones” under normal conditions, Amazon, for example, has injected much needed resources into the U.K.-based Deliveroo (Feiner, CNBC).

Signs

The relation between data and power is a consistent throughline in debates around antitrust. As a metaphor within the context of the market, data equals currency. This conflation is troubling for anti-monopoly advocates, who recognize the transformation of market operations alongside the development of new infrastructure. In particular, EU commissioner Margarethe Vestager has suggested algorithmic involvement in price fixing (Gris, Mondaq Business Briefing). Similarly, Charlotte Slaiman has pointed out the role of “network effects” in maintaining market dominance. In general, antitrust experts agree that historical precedents like the Sherman Act and the Hart-Scott-Rodino (HSR) Antitrust Improvements Act are no longer sufficient in dealing with the speed at which data is exchanged. That data is now understood as both capital and commodity, data collection is recontextualized as a means for abusing power.

Additionally, discussions about consumer data raise questions about privacy. Despite the link between data collection and privacy in consumer welfare, lawmakers have yet to address both anticompetitive practices and privacy violations through antitrust regulation. Notwithstanding the veneer of bipartisanship, regulatory efforts compete with unprecedented power held by tech titans like Mark Zuckerberg, who claim that “data is key to survival” (Dwoskin, Washington Post). AG Delrahim’s statement “big is not necessarily bad” is a common refrain throughout the sample, and it seems to signify a cultural conviction that dominant market forces transcend ethical codes. This is perhaps even more apparent in light of the global health crisis. As NYU marketing professor Scott Galloway remarks, “There is Big Tech, and there is everyone else. They can do what very few companies can do, which is play offense in the middle of a pandemic” (Dwoskin, Washington Post).

Solutions

Despite hostility across the political spectrum and among the various regulatory bodies hoping to rein in Big Tech, the most prominent sources (legal experts, antitrust researchers, and anti-monopoly advocates) call for an expansion of antitrust law to contend with digital infrastructure. Charlotte Slaiman of Public Knowledge states, “[t]here are special economic characteristics of digital platforms that make ongoing competition against them difficult. As a result, these markets are often characterized by what antitrust experts call ‘competition for monopoly,’ which means one or two firms are likely to win out and not face further competition often” (Lynn Stanton, TR Daily). Sympathetic to this trend are members of the FTC antitrust subcommittee. According to Tom Leithauser of TR Daily, there is bipartisan concern about the many instances in which Big Tech companies have encroached on smaller businesses. Summarizing the remarks from a hearing with testimonies from Sonos, PopSockets, and Basecamp, Leithauser relays the subcommittee’s interest in “consider[ing] legislative solutions along with finding ways to make federal regulatory agencies conduct more robust oversight of the online ecosystem” (TR Daily).

Echoing Slaiman’s remarks on data weaponization through network effects and algorithmic price fixing, FTC Commissioner Rohit Chopra (Dem.) “advocates the need for ‘legal tools to redress harms to competition from poor privacy practices’” (Gris, Mondaq Business Briefing). On the other hand, Republication subcommittee member Sen. Josh Hawley calls for a restructuring of the antitrust agencies themselves, specifically suggesting that the FTC be moved into the DOJ and be led by a single director (Kaberline, Kansas City Business Journal).

More specific solutions have been offered by former presidential candidate Elizabeth Warren.  Reporting for Mondaq Business Briefing, Brian Byrne reports that “Warren is rumored to be considering a proposal that would bar companies with $40 billion in annual revenue from engaging in [mergers and acquisitions].” Along a similar line of thinking, University of Michigan law professor Reuven S. Avi-Yonah suggests corporate taxation as a complement to antitrust law (Cohen, TaxProf Blog).

Coupled with major differences of opinion, enforcing antitrust retroactively is particularly difficult given the hundreds of acquisitions that the FTC is currently examining. But representatives from both parties demonstrated their interest in learning how large technology transactions work with the announcement of the section 6(b) inquiry in February 2020. This inquiry suggests a bipartisan effort in understanding the relationship between competition and data protection.

References

Bode, Karl. (2020). “So Wait, People Really Think the Barr DOJ’s Investigation into Google is in Good Faith?” TechDirt, May 26, 2020. https://www.techdirt.com/articles/20200520/09524444537/so-wait-people-really-think-barr-dojs-investigation-into-google-is-good-faith.shtml.

Byrne, Brian. (2002). “Active Times for Antitrust.” Mondaq Business Briefing, January 20, 2020.

Cohen, Paul. (2002). “Avi-Yonah: Using The Corporate Tax Rather Than Antitrust To Curb The Power Of Big Tech.” TaxProf Blog, April 2, 2020. https://taxprof.typepad.com/taxprof_blog/2020/04/avi-yonah-using-the-corporate-tax-rather-than-antitrust-to-curb-the-power-of-big-tech.html.

Dwoskin, Elizabeth. (2020). “Wider economy’s losses could be Big Tech’s gain.” The Washington Post, April 29, 2020. 

Feiner, Lauren. (2020). “Big Tech’s goodwill tour won’t carry weight in antitrust probes, experts say.” CNBC, April 19, 2020. https://www.cnbc.com/2020/04/19/why-big-techs-coronavirus-goodwill-wont-help-in-antitrust-probes.html.

Foroohar, Rana. (2020). “EU and US regulators scrutinise Big Tech and digital ‘monopoly’.” Financial Times, January 22, 2020. https://www.ft.com/content/f7b13372-3797-11ea-a6d3-9a26f8c3cba4.

Gris, Ben. (2020). “European Union and United States: Antitrust and Data.” Mondaq Business Briefing, January 9, 2020.

Hatmaker, Taylor. (2020). “With pandemic-era acquisitions, big tech is back in the antitrust crosshairs.” TechCrunch, May 15, 2020. https://techcrunch.com/2020/05/15/facebook-giphy-acquisition-uber-grubhub-google-doj/

Kaberline, Brian. (2002). “Hawley wants to move FTC into the DOJ to better take on big tech.” Kansas City Business Journal, February 10, 2020.

Kendall, Brent. (2002). “FTC Commissioner: Antitrust Enforcement Isn't Answer to Tech Privacy Concerns.” The Wall Street Journal Online, January 30, 2020.

Leithauser, Tom. (2002). “House Panel Hears ‘Horror Stories’ About Big Tech’s Conduct.” TR Daily, January 17, 2020.

Swartz, Jon. (2019). “Regulating Big Tech was mostly talk in 2019 – expect the same in 2020.” MarketWatch, December 31, 2019.