This week’s elections could be a turning point in US antitrust legislation, especially for large technology companies, with ramifications for Europe, as similar approaches have been adopted on both sides of the Atlantic in recent years.
This week’s elections could mean a turning point for the application of the antitrust legislation American, especially with regard to the large technology companieswith ramifications for Europe, as similar approaches have been adopted on both sides of the Atlantic in recent years.
Joe Biden’s victory in 2020 heralded a series of radical appointments in key positions of the US agencies responsible for application of competition regulations. Among them stand out the appointment of Lina Khan at the head of the Federal Trade Commission (FTC) and that of Jonathan Kanter, who also arrived under the Biden Administration as deputy attorney general of the antitrust division of the US Department of Justice (DOJ).
Both are ‘neobrandeisians’, followers of a antitrust movement worried about how Excess market power can harm competitionwhich takes its name from the early 20th century American trustbuster Louis Brandeis, who believed that monopolies are bad for workers and harm business innovation.
Khan’s arrival heralds a More aggressive approach to antitrust enforcementespecially in relation to large technology companies. In December 2020, the FTC – along with 46 states – filed an antitrust lawsuit against Facebook parent Meta, alleging that its acquisitions of Instagram and WhatsApp were anticompetitive. The protracted case has rumbled in and out of court, surviving attempts to bring it down, but has not yet come to trial. In 2023, the FTC initiated action against amazon for enrolling users in their Prime program without their consent.
Meanwhile, the Justice Department is moving ahead with two landmark antitrust cases. In October 2020, the agency accused Google of illegally monopolizing the search and search advertising markets, especially on Android devices, as well as with Apple. After a hearing held in Washington DC at the end of 2023, it was considered that Google had illegally used its monopoly position in the technology market search engines to secure your position with mobile and website partners. But the court has not yet determined what corrective measures will be imposed on Google.
In a second lawsuit against the search giant filed in January 2023, the DOJ accused Google of illegally monopolize the advertising technology or ‘adtech’ market. This technology acts as a sort of middleman for websites looking to earn revenue from advertising. Last September a trial was held in which the US government department intends force Google to sell significant parts of adtech business and to put an end to some of its business practices. Closing arguments have not yet been filed, but are scheduled to occur later this month, after the election.
According to Cristina Caffarra, of the Economic Policy Research Center, “Lina Khan has managed to turn antitrust into a important topic like no one had achieved before.” This stricter approach of the application of competition rules to large technology companies in the US. It has also brought him closer to the mentality of the European Commission.
The EU also fights against monopoly
Under the mandate of the Competition Commissioner, Margrethe Vestagerthe EU launched its Digital Market Act (DMA) in 2022, imposing upfront obligations on digital platforms in a bid to facilitate regulatory enforcement against tech giants. The DMA follows several landmark antitrust actions against Google, which revealed the weakness of the use of legal tools to suppress a rapidly evolving technology sector.
“The words of the FTC and the DOJ are close to those of the Commission: ‘We have to intervene to block the dominance of Big Tech,’ they say,” according to Christophe Carugati, Digital Competition consultant. But this approach could change if Donald Trump wins.
What happens if Trump wins the election?
“If Trump wins, it’s a safe bet that heThe new chairwoman of the FTC would be less aggressive towards Big Tech than Lina Khan”, according to MEP Markus Ferber (Germany/European People’s Party), who believes that “the same goes for other key actors “On the contrary, “the EU is unlikely to change its stance on large platforms, since the DMA and the Digital Services Act have only recently come into force,” said Ferber, a member of the Parliament’s Economic Affairs Committee.
But a Trump victory would not necessarily mean the end of Khan and Kanter’s neo-Brandeisian tour. Khan herself has received praise from Trump’s running mate and Silicon Valley aficionado JD Vance. “He has recognized that there has to be a broader understanding how we think about competition in the marketplace,” Vance recently said of Khan.
In February, as the Justice Department began its second action against Google, Vance expressed his approval in a post on X, formerly Twitter: “It should have arrived a long time ago, but It’s time to end Google. This matters far more than any other issue of election integrity. “The monopolistic control of information in our society resides in an explicitly progressive technology company.”
This ‘janservative’ opinion is shared by other members of the republican partyincluding Senators Josh Howley and Mike Lee, as well as Texas Attorney General Ken Paxton. “Two points of view currently coexist in the Republican Party on antitrust,” according to Caffarra.
One of them could be considered “the Chamber of Commerce wing,” he said, adding that this pro-business lobby group “represents the traditional values of the G.O.P. in favor of large corporations and against aggressive enforcement of antitrust laws.”
The other wing, on the contrary, “is militant against some of the digital giants for what they perceive as restrictions on freedom of expression and privacy.” According to Caffarra, this second wing – more similar to Vance’s position – would be satisfied with the dissolution of some technological giants.
ADVERTISINGThe support of the ‘janservers’ could also be reserved for the technological field, according to Paul Lugard, partner at the American law firm Baker Botts. “If Trump wins, antitrust enforcement could still be hard against the big platforms, but maybe less aggressive against consolidation in other industries,” he said. If this happens, stopping the dominance of big technology companies in the market would continue to be a common objective on both sides of the Atlantic.
What if Harris wins?
The future course of US antitrust policy in the event of a Harris victory is also uncertain, as it also appears to divide Democrats. Some Big Tech donors to Harris campaignlike LinkedIn co-founder Reid Hoffman and technology investor Mark Cuban, have called for Lina Khan’s resignation, although Harris herself has maintained silence on the FTC chairmanship.
Its platform is committed, however, to fight big corporations: “As president, [Kamala Harris] will direct his Administration to end anti-competitive practices that allow large corporations to raise prices and undermine the competition that allows all businesses to prosper while keeping prices low for consumers.
“Within the Democrats, there are the progressive-populist like Warren, Sanders or AOC, but also many more in the mainstream of the party who consider Lina Khan and Jonathan Kanter as the greatest assets of the Biden Administration“says Cristina Caffarra. “Harris has not shown her cards on the matter, but the hope is that if she wins, she will keep Khan and Kanter,” she adds, considering that Harris would ignore the donors who pressure her to fire Khan.
ADVERTISINGRegardless of whether Khan has to continue fighting against the dominance of big technology and how long it takes to do so, we will also have to ask how the application of EU rules can evolve under the leadership of a new Competition Commissioner.
As Carugati points out “We still do not know Teresa Ribera’s vision [designada comisaria española de Competencia] on antitrust policy towards the digital market”.
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