Big Tech antitrust hearing could be colossal — or mere theater

The CEOs of Amazon, Apple, Facebook and Google will face hard questions about their power, size and reach on Wednesday

From left, Facebook’s Mark Zuckerberg, Amazon’s Jeff Bezos, Apple’s Tim Cook and Google’s Sundar Pichai. (Tom Williams and Bill Clark/CQ Roll Call file photos)
From left, Facebook’s Mark Zuckerberg, Amazon’s Jeff Bezos, Apple’s Tim Cook and Google’s Sundar Pichai. (Tom Williams and Bill Clark/CQ Roll Call file photos)
Posted July 28, 2020 at 5:10am

The virtual appearance by four of the world’s most powerful technology executives before the House Judiciary antitrust subcommittee on Wednesday could be a defining moment for bipartisan efforts to rein in Silicon Valley. 

Or it could be a political circus.

On one hand, the hearing represents the Antitrust, Commercial, and Administrative Law Subcommittee’s only chance to publicly question the executives — Amazon’s Jeff Bezos, Apple’s Tim Cook, Facebook’s Mark Zuckerberg and Google’s Sundar Pichai — during the course of its 13-month bipartisan investigation into each company’s business practices and whether those practices illegally stifle competition.

On the other hand, it is a rare opportunity for lawmakers less interested in antitrust to pepper the executives with questions about a host of other issues, or to simply criticize them for perceived wrongdoing. Similar hearings in the past have gone in the latter direction.

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But speaking to reporters by phone on July 23, the senior committee aides who have guided the investigation through five previous hearings, as well as 1.3 million documents provided by the companies and their competitors, stressed the seriousness of Wednesday’s hearing.

Rep. David Cicilline, D-R.I., the subcommittee chairman who has led the investigation, intends for Wednesday’s hearing to remain “laser-focused” on antitrust issues, said the aides, which is why the hearing is being held at the subcommittee level despite its high-profile witness list.

The aides said the hearing would be “evidentiary” in nature, with the goal of filling gaps in the subcommittee’s investigation prior to the release of a set of policy recommendations later this year. The aides downplayed the possibility of adversarial cross-examinations by lawmakers, saying the affair would not play out like “a normal oversight hearing.”

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Many observers in the world of antitrust law are eagerly anticipating the hearing and hoping that Cicilline succeeds in his efforts to keep the proceedings focused.

“This hearing is timely and important,” said Maurice Stucke, a former prosecutor in the Justice Department’s antitrust division who now teaches law at the University of Tennessee in Knoxville. “It’s taking place not in isolation, but amid increased scrutiny of the dominant technology platforms from around the world.”

Stucke believes the hearing is happening at a critical juncture, when authorities are beginning to grapple with the sweeping market power amassed by a handful of digital platforms, only to realize that current antitrust laws are inadequate and in need of change.

All four companies appearing at Wednesday’s hearing are the targets of ongoing antitrust investigations by the Justice Department, Federal Trade Commission or bipartisan coalitions of state attorneys general.

“The emerging consensus is that first, antitrust scrutiny is a necessary but not sufficient component to address the multiple risks that these powerful platforms pose; second, the antitrust laws need to be updated; and third, we need to go beyond antitrust to a regulatory framework that addresses the risks posed to consumer protection and privacy,” Stucke said.

Skeptics of regulation

But there are others who see the antitrust scrutiny of major technology companies as misplaced. Geoffrey Manne, president of the International Center for Law and Economics, which advocates limited antitrust regulation of digital platforms, is skeptical of using antitrust enforcement to rein in or break up the companies, as some have suggested doing.

“The risk of error seems to me to be substantially high and seriously risks deterring innovation and novel business models that may look anti-competitive because we don’t quite understand them,” Manne said. “There’s always a monopoly explanation for conduct we don’t understand.”

Manne said he supports the committee’s investigation because “it’s hard to fault the effort to obtain more information,” although he remains concerned that members of Congress are not up to the task of successfully questioning the executives — or the task of staying on topic.

“There are a lot of political points to be scored by criticizing Big Tech,” he said. “And that always worries me because I don’t think we’re likely to get the best results for consumers in a highly politicized sort of environment.”

While lawmakers seek to seize their chance, the executives themselves have little to gain from the hearing, Manne said.

“Their objective is to do as little damage as possible,” he said. “But it’s also a platform for them, so they may come armed with potentially useful arguments to help the public understand their perspectives.”

Stucke predicted the executives would strike conciliatory tones when accused of misconduct and offer tacit support for broad, nonspecific policy proposals.

“We know the typical responses,” he said. “They’ll say the devils are in the details.”

He advised the executives to take a more proactive approach by expressing openness to working with both lawmakers and regulators on new antitrust policies.

“Change is coming,” Stucke said. “Even if these companies beat it back in the United States, we’re seeing emboldened antitrust forces around the globe. And they’re going to take action.”