Is it time for a new agency to oversee Big Tech? Many say yes
| Jeff John Roberts
The Justice Department's decision to sue Google this week elicited mixed reactions, but there's one point on which everyone agreed: The antitrust case will take years to play out. There are various reasons for this—from the complexity of the case to Google's vast legal resources to the sluggishness of the judicial process—but the upshot is that the search giant will be able to conduct business as usual for the foreseeable future.
Not everyone is satisfied with this situation. As the New York Times reports, a growing number of influential figures, from law professors to former regulators, are calling for a different approach. Concluding that antitrust law is simply too slow, they believe it's time for a new body to oversee tech behemoths like Apple, Facebook, Google, Microsoft, and Amazon. From the Times:
"A more rapid-response approach is required, they said. One solution: a specialist regulator that would focus on the major tech companies. It would establish and enforce a set of basic rules of conduct, which would include not allowing the companies to favor their own services, exclude competitors or acquire emerging rivals and require them to permit competitors access to their platforms and data on reasonable terms."
As the Times notes, the idea of a specialized regulator for certain sectors or companies is hardly unprecedented. The Federal Aviation Administration oversees airlines, for example, while the Food and Drug Administration regulates pharma companies, and the Federal Communications Commission watches over the likes of AT&T and Verizon. Meanwhile, the government singles out certain financial institutions for special regulation on the grounds of their size.
Among those calling for a specialized regulator for Big Tech is Jason Furman, a Harvard University professor who is advising the U.K. government on creating a new body to oversee digital utilities. Furman describes himself as a "small 'c' conservative," and the Times points out that he and other advocates for a new regulator are hardly progressive firebrands.
Currently, the tech giants aren't free from regulation, of course. The Federal Trade Commission has a sophisticated team of technical staff and has repeatedly launched into Facebook, Google, and others for a variety of misdeeds, including privacy violations. That said, the FTC also appears to lack the legal tools to bring the tech firms to heel. Its primary tool—so-called consent decrees—don't allow the agency to impose fines for a first offense and, when a company violates those decrees, the penalties haven't been enough to change their behavior.
A new agency that is both nimble and specialized could thus be just the tool to prevent the tech behemoths from abusing their monopoly positions. But not everyone is in favor of the idea. Zephyr Teachout, a law professor at Fordham University and an influential tech critic, warned that those advocating for the idea may have other agendas:
Teachout goes on to note that the scope of a Big Tech regulator's authority would be uncertain and that the agency would be prone to being captured by powerful tech lobbyists (something that many claim occurred at the FAA in the wake of the 737 Max air disasters).
Other critics of the proposal claimed that antitrust law is an effective tool so long as political leaders are willing to deploy it:
Re this article...antitrust hasn’t worked because it’s been stuffed in a closet for the last 40 years!(!!)— Sarah Miller (@sarahmillerdc) October 22, 2020
Grateful for leaders like @RepCicilline who are demonstrating how antitrust + reg is essential for restoring fair competition and democracy itself. https://t.co/gmHt11EDL5
The tweet cites Rep. David Cicilline (D-R.I.), who led a landmark new report on anticompetitive activities by big tech companies, and who this week called for an end to an "era of weak enforcement" in antitrust.
Others, however, praised the idea for a new regulator. Karen Kornbluh, an executive with the influential policy group GMF Digital, noted that such calls are consistent with a recent report she coauthored that claims a new breed of regulator is required to check the abuses of big tech companies.
Ultimately, though, it would fall to Congress to create any Big Tech regulator and, for now, there appears to be little momentum to do so.