Donna Faye Imadi ‘22
Current Events Editor
Already a year has come and gone since I first happened upon the event “Antitrust in the Digital Economy” as an eager 1L and was inspired to learn and experience all that the legal profession offers us. Writing my first Virginia Law Weekly piece covering the event, titled “Make Antitrust Cool Again: Antitrust in the Digital Economy,”[1] I recall Professor Hockett's passion as he sought to convince his audience that 1) antitrust was “cool;” and 2) it was quite a “big deal” in relation to regulating Big Tech. U.S. antitrust laws that form the foundation of our nation’s free-market economy, prohibiting monopolistic conduct and conspiracies in restraint of trade, are governed mainly by the Sherman Act passed in 1890. (Big Tech refers to Google, Facebook, Amazon, and Apple—the preeminent tech companies of our time.)
It only took my coverage of this one event to sow the seed of intrigue on how “Big Tech” companies influence the social, economic, and political systems that pervade every facet of our lives. Serendipitously, exactly a year has passed since I first learned what the term “antitrust” meant through my reporting. As a 2L, I return, having had the chance to sink my teeth into these issues by working in the Technology Enforcement Division at the Federal Trade Commission (FTC). By way of this experience, I feel inclined to report to you that Professor Hockett’s belief about the promise of a career in antitrust law, as well as how antitrust law relates to Big Tech, is correct. Big Tech’s influence is critically important to our lives and antitrust is at the heart of determining how to usher in our 21st-century technological transformation—a technological transformation which not only affects our economy, but our nation’s fundamental democratic processes, international security, and our shared conception of reality itself.
When the unthinkable descended upon the world by way of COVID-19 in mid-March, many things changed in our personal lives. We were stuck in our homes for weeks on end, longing for the “simplicity” of our former grocery runs or restaurant outings. But, we had great resources at our disposal to match the moment. Resources we have come to regard as our “virtual toolboxes.”
Prior to the pandemic, I had felt trepidation about entering a “virtual reality.” I was disinclined to use all of the “tech tools” at my disposal. In fact, I employed any method possible to avoid downloading apps like Venmo or even making purchases online via eBay, Amazon, or Instacart. Yet necessity was the mother of conformity once COVID-19 turned our lives upside down. Many Americans, like myself, who previously did their utmost to avoid being sucked in the digital economy due to concerns about privacy, data, and lack of transparency, were impelled to change course. Paralyzed by the pandemic and stuck at home, we adapted.
For better or worse, our economy was also forced to adapt, markedly impacting 51 million Americans who filed for unemployment as of mid-August.[2] Both producers (workers who are unemployed) and consumers (all of us) thrust to change our habits. On the consumption end, millions of Americans turned to large e-commerce sites such as Amazon for basic commodities (remember the toilet paper catastrophe?). They also turned to Facebook and Google (parent of Youtube), seeking ways to combat the effects of social isolation. Moreover, with over one-hundred million iPhone users in the U.S alone, we spent an incredible amount of time on our phones/devices—downloading apps that became more influential in shaping our conception of the world around us and ourselves.
Our increasing dependence on these digital platforms only exacerbated their power to construct and influence the realities we were siloed into within our homes. This influence was reflected in monetary third quarter earnings reported on July 31. Amazon reported record revenue and profit increases, doubling profits to a record $5.2 billion, far exceeding expectations. Apple also reported a 11% increase in quarterly sales due to strong demand for apps, reliance on remote-work devices, and a lower priced iPhone.
But, this might all seem so obvious to you. “Of course, their earnings increased,” you might think. And why should that be an issue? These tech companies provided us great services in an unprecedented era. Could we have imagined enduring such a catastrophic global event as this pandemic without such technological interconnectedness?
You have a point. Being profitable in America is not a crime. Nor is it a crime to “Be Big.” As House Representative Sensenbrenner said in his opening remarks at the investigative hearing before the House Antitrust Subcommittee, on July 29, 2020, which examined the “Dominance of Amazon, Apple, Facebook, and Google.” “Being big is not inherently bad” and “America should reward the success of its business.” The nearly five-and-a-half-hour testimony of the CEOs of these companies (Jeff Bezos, Tim Cook, Mark Zuckerberg, and Sundar Pichai) demarcated the progress of a nearly yearlong investigation spearheaded by Chairman Cicilline (D-RI). He began the hearing reflecting exactly why being “too big” might be a problem, weighed against those benefits of Big Tech. His statements emphasized the consequences of the abuse of these platforms’ market-power (exacerbated by COVID-19), especially in eLearning, e-commerce, social media, and other essential platforms.
Over the course of the next month, I’ll reflect on my recent experiences at the FTC to illuminate how regulation of Big Tech via our nation’s antitrust laws, or statutory authority, may impact our lives. We’ll turn to the recent Antitrust Subcommittee hearing to do this, then to how antitrust in Big Tech intersects with U.S. international security objectives. Lastly, we’ll focus on how Big Tech is regulating our social processes and conceptions of our communities, especially in light of the recent and upcoming elections.
Big Tech is a BIG issue. Let’s get to it.
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dfi3un@virginia.edu