Washington faces uphill battle in taking on Big Tech

Linda J. Dodson

Perhaps more importantly, it would be a victory for Barr, who would be replaced in a Biden administration. But at the same time, the urgency to bring charges has led to fears it could be a hastily-prepared case. Several Justice Department lawyers have reportedly stepped away from the investigation or said they will refuse to endorse charges, fearing that they will not be strong enough to triumph in US courts. 

State-level prosecutors, which have been separately investigating the company, are also said to be split along political lines as to whether to join the Justice Department.  Stalling may be unwarranted. Lawyers are likely to ask for more time on just about anything, and regulators have had plenty of time to study Google’s allegedly anti-competitive tactics.

But any suggestion that a case will have been hastily put together is likely to concern anyone who believes the company’s power should be curtailed.  Unlike the monopoly enforcement model typically employed in Europe, in which companies are fined and then have the option of a lengthy and laborious legal appeal, US prosecutors that are unable to settle an investigation must argue their case in court to secure punishment. And when they try, they can lose. 

In August, a US judge shot down claims from the Federal Trade Commission that chipmaker Qualcomm had unfairly pushed out rival companies. Last year, the Justice Department failed to get a court to undo a merger between AT&T and Time Warner. A long history of US case law has made it exceedingly difficult for the government to win monopoly cases, especially when a service is provided for free to the consumer, as it is with Google.

All of this means that if the world’s biggest search engine is to face competition charges in its home market, any case must be airtight. Lawyers abandoning the case because they fear it is being rushed does not suggest it will be. It is fair to say that Google would rather fight a hastily put together legal challenge now than a comprehensive one later. The picture that emerges is of a system that looks set up not to tame the tech giants, even if concerns about them are legitimate.

Even when taking action against Google has support from both parties, and prosecutors have no shortage of complaints to investigate, the prospects for a successful challenge against the company, let alone the break-up that some would advocate, are unclear. The same could be true for Amazon, Facebook and Apple.

The more likely path to US competition crackdowns against Silicon Valley could be new laws, a prospect that a Congressional committee is investigating, but which might prove difficult in today’s gridlocked Washington.  While taking action against the tech giants has become a rare bipartisan issue in Washington, Republicans and Democrats want different things. One side claims Silicon Valley is censoring speech, the other that it is centralising power and amassing too much wealth. The proposed solutions differ, which partly explains why no significant tech regulation has come into force despite a widespread clamour for something to be done.

A new face in the White House may break that gridlock. But for now, Washington seems ill-equipped to take on Big Tech.

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