Trajectory #3: The AntiTrust Hammer
The Impending Regulatory Wave for Big Tech
|Mikal Khoso||Sep 19, 2019||4|
This week’s key issue is the question of antitrust in the technology industry. This is one of the subjects that most interests me and this edition will be part of a series of editions focused on antitrust in various industries in the coming weeks. Today, a growing chorus of outrage worldwide is driving regulators to investigate the tech industry. The tech industry has operated relatively uninhibited for the last two decades. In that time, the industry has revolutionized whole areas of the economy and a few superstar companies have reached levels of dominance unmatched in history. But the rise of these superstar tech companies have come with a lot of unintended consequences for democracy, society and business. Regulators and the general public have legitimate antitrust cases against the Big Four tech companies - Apple, Facebook, Google and Amazon. Privacy concerns, market power and anticompetitive behaviour are all being cited as examples of tech behaving badly. This week we’ll unpack the investigations underway into the tech industry and why antitrust concerns are legitimate and likely to result in significant enforcement and regulation in the coming years.
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Key Issue: Antitrust and Big Tech
The technology industry has seen almost two decades of explosive growth after many observers predicted the industry had died after the Dotcom Bubble of 2001. In the last 20 years a generation of superstar startups have scaled and revolutionised how we communicate, transact, find information and what devices we own and use. A lot of good has been created in this process and many have benefitted immensely, both consumers and businesses. But as the second decade of the 21th century comes to a close, the challenges and harms that these tech companies create - despite the good they are also responsible for - is becoming increasingly clear.
Sparked by the Cambridge Analytica scandal in 2016, in which millions of people’s personal data was harvested via Facebook for use in the US election cycle, the backlash against the tech industry has continued to grow rapidly. Tech companies are under attack on all fronts:
European antitrust regulators fined Google $4.9 billion in July 2018 for unfairly pushing its apps on users of its Android system and thwarting competitors. Separately, Google was also fined $2.7 billion for using its search engine to steer users to purchase via Google Shopping instead of competitors. Finally, Google was recently fined $1.7 billion for abusing its dominant position in online search advertising.
European antitrust regulators have begun studying Amazon’s practices in Europe ahead of potentially launching a formal antitrust investigation.
Facebook was fined $5 billion by the US Federal Trade Commission (FTC) in a privacy probe sparked by the Cambridge Analytica Scandal. The FTC also recently opened a separate antitrust investigation against the company
Youtube - owned by Google parent company Alphabet - was fined $170 million by the FTC for illegally collecting children’s personal information.
A group of attorneys from 48 US states plus Puerto Rico and the District of Columbia are investigating Google’s dominace of the ad market and use of consumer data.
A group of attorneys from 8 US states and the District of Columbia are investigating Facebook for potential anticompetitive practices.
The US House Judiciary Committee is investigating Google, Amazon, Apple and Facebook’s practices and recently requested email records and other files from each of these companies to assess if they have engaged in anticompetitive behaviour.
The US Department of Justice has launched a sweeping review of the market power and concentration of the Facebook, Google, Amazon and Apple.
US presidential candiate Elizabeth Warren has made breaking up big tech companies a key talking point of her campaign.
When it rains, it pours regulation and enforcement. This barrage of investigations, requests and attention come on the back of testimonies by Facebook CEO Mark Zuckerberg and Alphabet CEO Sundar Pichai on Capitol Hill in 2018. What is driving this intense focus by regulators? Three main drivers are causing tech companies to be put in the spotlight:
Privacy Concerns - The Cambridge Analytica scandal brought privacy back into the limelight given how freely Facebook allowed private companies to access personal user data and monetise and use it for gain. The major tech companies have been hoarding personal information at scale for years. Simply open your personal Google account history to see the level and depth of data just Google has on you as a user.
Anticompetitive behaviour - European antitrust investigations of Google manipulating search results to privilege Google Shopping and the recent news that Amazon manipulated search results in its store to privilege products it owns is part of a pattern of increasingly brazen anticompetitive behaviour by tech companies.
Market Concentration - Tech companies have monopolized key parts of the internet. Facebook has 2 billion users and is the king of social networks. Google has an incredible 90% market share in the global search market. Together Facebook and Google are almost 60% of the global online advertising market. 1 in every 2 dollars spent online in the US is spent on the Amazon webstore. Apple’s share of the global smartphone market is over 50%.
These interlocking concerns have become increasingly prominent in recent years as these tech companies have become even bigger and impacted ever broader areas of the economy. In retail, an “apocalypse” of sort is going on where retailers are going bankrupt and shutting stores in droves, in large part driven by the rise of ecommerce thanks to Amazon. The news industry has been put under tremendous pressure by Facebook and Google and local newspapers have been disappearing for over a decade. Apple runs the world’s largest mobile app store with a whopping 80% market share and takes a huge 30% cut of transactions coming through its store.
Antitrust regulation and competition law is the hammer that governments - and to a larger extent electorates - will use to try break the seemingly insurmountable stranglehold tech has on different industries and the challenges it presents to democracy. At its heart competition law and antitrust is focused on promoting consumer welfare. Competition law assesses three different areas in its quest to maximise consumer welfare - price, choice and innovation.
Price is the simplest and easiest example. Is a company that dominates an industry (a monopoly) or a series of companies that dominate an industry (an oligopoly) using their market power to inflate prices in the industry to increase revenue and in the process harming consumer welfare?
Choice involves ensuring that consumers have a range of diverse choices to choose from and are not constrained in their choice by the dominant players in the market. Finally, competition regulators spend a lot of time assessing whether the structure of the market and the size of the different players will continue to facilitate innovation in a specific market over time. If the answer is no, then consumer welfare is not being maximised because incumbents have little incentive to innovate and consumers aren’t benefitting from improved services driven by rapid innovation over time. Competition is a crucial driver in innovation, and innovation is critical in continuing to maximise consumer welfare over time.
Regulators worldwide and people have legitimate and well-grounded antitrust cases against the “Big Four” tech companies. Each of these companies are different in their business model and what structurally has lent them their dominance. But each of them share one critical feature - they are gatekeepers for consumer attention and dollars. Facebook is our gatekeeper for social interactions across Facebook, Instagram and Whatsapp. Google is our gatekeeper for finding information. Amazon is our gatekeeper for ecommerce. Apple is our gatekeeper for consumer applications and to some extent smartphones.
Being a gatekeeper is powerful in any industry, but the big 4 tech firms are supercharged gatekeepers and hold a level of dominance that hasn’t been seen before. The power of being a gatekeeper is simple, a gatekeeper gets to set the terms of who passes through the gate and at what cost.
Tech companies have used their power as gatekeepers to systematically push out competitors, privilege their own services and thereby maximising their own revenue. Tech companies have been focused in the last decade on vertically integrating services in areas they predict they can capture market share. For example, if you search for a job or flight on Google today Google places its widget for Google Flights or Google Jobs above all other search results. This directs traffic away from travel websites like Expedia and Booking.com and jobs websites like Monster.com towards Google products. Google did the same thing in Europe by artificially promoting links to Google Shopping products over competitors and was fined heavily by the European Union for it.
Amazon was recently caught doing precisely the same thing. Even more perniciously Amazon uses the data from its marketplace to identify what products are performing the best in its marketplace. It then creates its own version of that same product under the Amazon Basics brand and begins selling it on Amazon, often at a steep discount to the original product.
Facebook has sought to vertically integrate news reporting into the Facebook platform and prevent users from clicking on external news links shared on Facebook thereby taking them to another website. Facebook soon will be launching a news tab on its platform and is licensing content from news outlets like the Wall Street Journal and New York Times. The goal of Facebook is to increase the time we spend on Facebook and therefore increase the number of ads we can be served and increase its own revenue. This will come at the expense of subscription and ads-based news sites like the Wall Street Journal.
As gatekeepers tech companies can systematically vertically integrate products, cutting off oxygen for competitors and limiting consumer choice in the process. They have been free to do that for over two decades uninhibited. But the wheels of change are beginning to turn. Overall, the world is at a turning point when it comes to the regulation of the technology industry. The freewheeling approach to privacy regulation, market concentration and antitrust is rapidly coming to an end. The antitrust hammer is going to drop on the tech industry. The question is how and what will new regulation look like?
Tech companies should no longer fight the impending wave of regulation and enforcement coming their way. The tide is simply too strong. Instead, they would benefit most by working with regulators to create regulatory frameworks that are fair and robust and aren’t crude and poorly designed as Mark Zuckerberg is doing in Washington D.C this week. Otherwise this is going to be long, drawn out and very painful for the tech industry.