(2023-02-26) Biden Finds Breaking Up Big Tech Is Hard To Do

Joe Biden finds breaking up Big Tech is hard to do. The Department of Justice offensive, a pair of lawsuits aimed at breaking up the search giant’s dominance, will play out in the courts — reflecting a new phase in the Biden administration’s years-long effort to rein in Big Tech, after a sweeping antitrust package stalled in Congress.

halfway through his term, the movement’s losses have outpaced its wins, key figures are stepping down and Republican control of the House has taken bills that could break up tech giants off the table.

persuading courts to rethink decades of business-friendly precedent presents a challenge as daunting as pushing legislation through a divided Congress.

In December, the FTC filed to block Microsoft’s $69 billion acquisition of gaming company Activision Blizzard, part of a new strategy to bring frequent long-shot cases.

Such moves reflect the administration’s argument that competition policy, rooted for decades in the free-market ideals of the 1980s, must be rethought for the internet age.

Google alone has hired at least five former Justice Department lawyers in-house, including Jack Mellyn, a former top federal competition lawyer. The company has also retained the services of four outside law firms that have nearly 20 former Justice lawyers among them.

The lawmakers who co-sponsored the antitrust legislation say the industry’s unprecedented lobbying blitz was a significant barrier to passing it.

The bipartisan antitrust package, years in the making, would have rewritten the rules of the online economy to prevent companies such as Google, Apple, Amazon and Facebook from using their platforms to boost their own products or restrict clients from rival platforms

After the tech lobby raised concerns about the bills, Democratic leaders never brought them to a vote, and House Republicans are seen as unlikely to take them up.

Wu has already stepped down from the White House, and last week Cicilline announced he’ll leave Congress after the current term.

It’s unclear whether judges will buy the theories of the new antitrust vanguard without new legislation to back them.

William Kovacic, a law professor at George Washington University, said the FTC doesn’t have to win every case to move the needle on antitrust enforcement — but it has to win some.

it has only two-thirds the number of employees today that it had in 1980.

The FTC’s November policy statement on unfair methods of competition, she added, could give it a basis to crack down on some of the behavior that motivated the antitrust bills. And its ongoing project to overhaul federal merger guidelines could amount to a “fundamental refashioning of the government’s stance on big business.”

Barry Lynn, executive director of the anti-monopoly Open Markets Institute, said the Justice Department’s successful suit to block a major merger in the publishing industry could have implications for Big Tech.

But Kovacic said the window of time in which to rack up such gains may be limited, as Republicans view of the agencies’ aggressive approach begins to sour ahead of a 2024 election

The rise of TikTok eroding Meta’s growth and Microsoft’s use of AI to challenge Google in search show those markets are still competitive, he argued. “There’s a pretty powerful line of thinking … that dominant firms come and go,” Hovenkamp said.

Cicilline said in an interview that Congress’s failure to pass antitrust legislation last term was not the reason he’s leaving office. He acknowledged there are impediments in the Republican-controlled House. The new chair of the Judiciary Committee, Rep. Jim Jordan (R-Ohio), has opposed the antitrust bills put forth in the last Congress.