Too Big to be Broken & Too Colossal to Care

Big Tech might be in big trouble, but that’s never been new. After spending nearly two years investigating claims of anti-competitive behavior, the European Commission accused Amazon on November 10 of breaking the European Union’s antitrust rules.[1] In California, Google faces antitrust challenges of its own, one brought by app developers taking aim at the mega-search engine’s app store and in-app payment system, and another that alleges that Google established a monopoly in online advertising.[2] As the U.S. and E.U. turn their attention to Big Tech, it would seem a resurgence in antitrust activity is not only inevitable but targeted.

By the end of this year, the European Commission is expected to unveil sweeping regulations of the tech industry, including laws prohibiting self-preferencing of products and requiring the most powerful companies to share data with smaller rivals.[3]  In the U.S., Democrats have expressed an interest in revamping U.S. competition enforcement, a goal that antitrust subcommittee member Senator Amy Klobuchar has pushed since introducing her Monopolization Deterrence bill in July 2019.[4] During her presidential campaign, Senator Elizabeth Warren wrote, “We need to stop this generation of big tech companies from throwing around their political power to shape the rules in their favor, and throwing around their economic power to snuff out or buy up every potential competitor.”[5]  

Since the 1970’s, attitudes towards competition have remained largely the same, thanks in part to Robert Bork’s book The Antitrust Paradox, in which he argued that the crux of enforcement should rest not on a company’s market share but on whether a company’s actions harmed consumers.[6] This consumer-welfare standard quickly became antitrust dogma.[7] In 2000, the government attempted to break up Microsoft, and it almost happened. That is until the judgment was overturned on appeal.[8]

For years, companies like Amazon and Google have been able to amass substantial market power without facing antitrust scrutiny, but this, much like these companies’ Terms of Use, is subject to change.[9] In the last decade, stances towards antitrust have shifted, and not in the companies’ favor.[10]

2020 has proven to be a year of reinvigorated international antitrust enforcement. The Justice Department’s case against Google, announced in October 2020, could set off a cascade of other antitrust lawsuits.[11] In the EU, Amazon is just one target of many.[12] As 2020 draws to a close, European Commission Vice President Magrethe Vestager, offered a solemn warning to international legislators: without stronger antitrust laws and stricter enforcement, Big Tech will continue only to grow stronger.[13]

 Sydney Park is a staff member of Fordham International Law Journal Volume XLIV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.

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[1] See Adam Satariano, Amazon Charged with Antitrust Violations by European Regulators, N.Y. Times (Nov. 10, 2020), https://www.nytimes.com/2020/11/10/business/amazon-eu-antitrust.html; see also Christopher Cole, Amazon Faces EU Antitrust Charges of Abusing ‘Dual’ Roles, Law360 (Nov. 10, 2020, 10:25 AM), https://www.law360.com/articles/1327545.

[2] See Julia Arciga, Google Says Dismiss Epic, Other Developers’ Antitrust Cases, Law360 (Nov. 16, 2020, 8:27 PM), https://www.law360.com/articles/1329249/google-says-dismiss-epic-other-developers-antitrust-cases-; In re Google Digital Advertising Antitrust Litigation, 5:20-cv-03556, (N.D. Cal. May 27, 2020).

[3] Satariano, supra note 1.

[4] See Bryan Koenig, Antitrust Dems Optimistic for New Congress, Administration, Law360 (Nov. 12, 2020, 10:27 PM), https://www.law360.com/articles/1328456/antitrust-dems-optimistic-for-new-congress-administration; Monopolization Deterrence Act of 2019, S. 2237, 116th Cong. (2019).

[5] Elizabeth Warren, Here’s How We Can Break Up Big Tech, Medium (Mar. 8, 2019), https://medium.com/@teamwarren/heres-how-we-can-break-up-big-tech-9ad9e0da324c.

[6] See Joe Nocera, The Great Antitrust Awakening Can’t Be Stopped, Bloomberg (Oct. 24, 2019), https://www.bloomberg.com/news/features/2019-10-24/2020-will-be-antitrust-s-great-awakening.

[7] Id.

[8] Id.

[9] See Edward D. Cavanagh, A 2020 Agenda for Re-Invigorated Antitrust Enforcement: Four Big Ideas, 105 Cornell L. Rev. Online 31, 36-37 (2020).

[10] See Nocera, supra note 6; see also Lina Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 564 (2017).   

[11] See Cecilia Kang, David McCabe, & Daisuke Wakabayashi, U.S. Accuses Google of Illegally Protecting Its Monopoly, N.Y. Times (Oct. 20, 2020), https://www.nytimes.com/2020/10/20/technology/google-antitrust.html.

[12] See Satariano, supra note 1.

[13] Id.