The Feds Need to ‘Grow a Set and Do Their Jobs’

The House antitrust subcommittee investigating Silicon Valley has already received plenty of tips from workers at tech firms, large and small, according to its chair, Representative David Cicilline (D-Rhode Island).

“There’s a lot of information that we’ve been gathering that people have shared with the committee but haven’t done publicly because they’re fearful of economic retaliation,” Cicilline told WIRED.

Cicilline’s subcommittee has been hosting hearings and roundtables on the state of competition in digital industries since the antitrust probe was announced on June 3. But the investigation ramped up last week when a bipartisan group of lawmakers on the House Judiciary Committee fired off letters to the CEOs of Amazon, Facebook, Alphabet, and Apple, requesting to see detailed internal documents and executive communications by October 14.

The House isn’t alone in looking closely at tech’s Big Four. Earlier this month, 48 state attorneys general, along with Puerto Rico and the District of Columbia’s top law enforcement officials, teamed up to launch a sweeping antitrust investigation into Google; a smaller group led by New York Attorney General Letitia James is also looking into Facebook.

Then there are the federal regulators at the Department of Justice and Federal Trade Commission, who are reported to be divvying up the bountiful oversight and investigative spoils supposedly hiding under only the finest rocks, desks, and servers in Silicon Valley. At least on paper—this week officials from both agencies embarrassed themselves in a Senate antitrust hearing, according to numerous lawmakers. We’ll get back to them in a bit.

All those state and federal investigations are supposedly quietly proceeding behind closed doors. The House could prove to be a more high-profile show.

”We know that there has been a tremendous concentration of market power and these digital platforms are engaged in monopoly-like behaviors because they’re so large, with really no competitors,” Cicilline said. “It’s resulted in a significant reduction of innovation, significant disregard for the privacy interests of consumers. It has prevented users from having real control over their data, and we know they’re engaged in anticompetitive behavior that’s favoring their own products and services.”

Since the government investigations began, tech companies have insisted in hearings and statements that their products improve consumers’ lives, and that they face plenty of competition. They’re not monopolies because—as their argument goes—how can one or two or even four companies monopolize the seemingly eternal digital space of the internet?

Lawmakers aren’t buying it, though. And it’s not just House Democrats. In an oddity in today’s hyperpartisan Washington, the investigation is fully supported by the Republicans on the subcommittee. There’s bipartisan ire in the marble halls of the Capitol when it comes to Silicon Valley.

“I believe there are major technology platforms—like Google, like Facebook—that have engaged in anticompetitive practices, particularly as it relates to the advertising space,” Representative Matt Gaetz (R-Florida) told WIRED.

The young Florida lawmaker met with Attorney General William Barr about these potential antitrust violations just last week. Gaetz thinks the congressional investigation will spur the Justice Department to be more aggressive in enforcing the antitrust laws already on the nation’s books.

“It is my belief that the committee could do a lot to encourage the Department of Justice to ramp up its antitrust efforts,” Gaetz said.

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Gaetz is known for lobbing rhetorical bombs on Fox News (especially during the hours when President Donald Trump is most likely glued to his flatscreen). He says while the investigation is likely to produce at least one bipartisan piece of legislation aimed at reigning in Big Tech, he’s also hoping it will help educate the American public about how tech firms are allegedly playing fast and loose with their private data.

“Then there is, I think, a political strategy, to do more to inform people that with many of these major technology platforms they are not the customer, they are the product,” Gaetz said.

After years of allowing Silicon Valley to regulate itself, even lawmakers admit Congress is late to wake up to the problems at hand. Some Democrats argue that’s because the GOP laid down on its oversight job while in the majority.

“Under Republican leadership the House had an opportunity to address these issues, and they did not do so,” Representative Hank Johnson (D-Georgia) told WIRED. “We are using our majority to do so.”

That may be the case, but Silicon Valley found plenty of supporters on the left during the Obama administration, even as the dominance of a few companies was becoming clearer. Recent events, from Cambridge Analytica to the Christchurch shooting, have jolted many into action.

“Technology has far outpaced the ability of the legislative branch to keep up with them. In fact, they’ve advanced so far and now we’re simply trying to review the extent of their activity and the market dominance and the impacts of their presence in the market,” Johnson said.

But if Silicon Valley has become a hotspot for monopolies, it’s not simply due to the fast pace of technological change. Antitrust laws in the US are widely regarded as weak. And after decades of lax enforcement, the government’s mechanisms for trust-busting might be rusty.

Nowhere was that clearer this week than in Congress’ other chamber, which held a hearing Tuesday with officials from the DOJ and the FTC, the federal government’s top antitrust agencies. Let’s just say, senators were not impressed.

During the hearing of the Senate Judiciary subcommittee on antitrust, Senator Mike Lee (R-Utah) said he sensed that the cozy agreement to divvy up oversight of the Big Four previously reached between the DOJ and the FTC seemed to “have broken down.”

“I would agree with that,” FTC Chair Joe Simons replied, before later refusing to elaborate when pressed on what exactly he meant by that damning admission.

When asked how the hearing went, Senator Sheldon Whitehouse (D-Rhode Island) said, “I would say not well for the administration—they got pummeled hard by both sides of the aisle on a broad array of perceived failings.” He added that the DOJ and the FTC need to “grow a set and do their jobs.”

“I can’t figure out what’s going on,” Senator Josh Hawley (R-Missouri) told WIRED. “I think the fact that these two agencies are fighting with each other publicly is really kind of unseemly and it really does highlight the fact that we’ve got a lot of jurisdictional overlap that I think is preventing enforcement. So I think it’s a big problem.” Hawley has previously told WIRED that the US might need to form a new body to oversee these massive technology firms and even called into question the FTC’s purpose.

Other senators say that the government has everything it needs to ensure a healthy market; it just needs to do it. “I just want the antitrust laws enforced. I don’t think we have to change laws, because they’ve been on the books for 120 years,” Senator Chuck Grassley (R-Iowa), the former chair of the entire Judiciary Committee, told WIRED.

Lawmakers in both chambers have offered ideas about what enforcement could look like, although that responsibility falls more on federal agencies and the courts. Some, like presidential hopeful Elizabeth Warren, are pushing to break up the biggest firms and unwind the mergers that were made years ago.

Back over in the House, some members hope all the attention encourages companies to start righting their own ships lest Congress take the helm and compel them legislatively. “It lets them know that the light is on,” Democratic representative Johnson of Georgia said. “They cannot conduct themselves as if there is no oversight.”

For Cicilline, the antitrust subcommittee chair who’s been spearheading much of the House’s probe, it’s not just about penalizing excesses in today’s increasingly exclusive tech bubble.

“We want to encourage a marketplace where innovation and entrepreneurship and new startups can thrive,” Cicilline said. “I think when you have digital platforms that have this huge market share and that are so large, that are acquiring their competitors or excluding them to put them out of business, the absence of innovation and competition has serious consequences. So it’s good for everyone if that marketplace is competitive and it functions properly.”

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