Citing Lack of Proof, FTC’s Wilson Blasts Tech Antitrust Proposals Like Sen. Warren’s
FTC Commissioner Christine Wilson ripped proposals to break up big tech platforms, as suggested by Sen. Elizabeth Warren, D-Mass., and some others (see 1903180058). “I reject attempts to short-circuit the traditional process and simply assume a problem and impose a preordained solution,” Wilson said at a Computer and Communications Industry Association event Thursday.
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Wilson didn’t reject the possibility that enforcers might find such conduct within the tech industry, noting the agency’s recently announced task force will examine such issues (see 1902280077). Enforcers should focus on conduct that can be tied to proven antitrust harm “like a reduction in output or an increase in prices,” she said. “I emphatically reject any suggestion that these markets are somehow unique and therefore warrant different treatment.”
Proposals that assume liability and impose remedies are attractive partly because they avoid “grappling with thorny legal and factual questions,” the commissioner said. “It’s far easier to simply impose a preordained remedy than it is to both prove that the defendant committed an antitrust violation and that the government’s preferred remedy is in the public’s interest.” Antitrust violations need to be proven before an impartial judge, she said. Warren's office didn't comment.
Wilson separated privacy and data security from antitrust issues, noting the agency hasn’t brought an antitrust case with a privacy or data security aspect. Privacy and data security are consumer protection matters, she said. “Any attempt to use antitrust to restrain the use of big data must demonstrate that the use of big data harms competition.” Privacy tools at the FTC’s disposal include the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act and the Children's Online Privacy Protection Act, she said. Congress is also considering privacy legislation, some of which Wilson supports.
A growing body of evidence shows increased levels of concentration in certain markets, ex-Commissioner Terrell McSweeny said. There’s also evidence that dynamism is slowing, and progressives are tying the issue to economic inequality, she said. It’s not surprising they’re turning to antitrust law to address monopoly issues, she added. However, she agreed privacy and competition issues are separate.
“If what you’re concerned about is a lack of comprehensive privacy framework, which is a legitimate concern, then the solution is to pass a comprehensive privacy framework, as opposed to necessarily trying to fix all of those problems through competition law enforcement, which is going to be a bit more limited to what you can do in that regard,” McSweeny said. She's now at Covington & Burling.
The bottom line is that the U.S. has robust privacy protection, said FTC Deputy Director-Economic Analysis James Cooper. Like Wilson, he cited COPPA and HIPPA. He also noted that all major tech companies are under 20-year agency consent orders, and state attorneys general are actively enforcing their own consumer protection laws. Policymakers need to find a way to continue balancing priorities for privacy while allowing industry innovation, he said.