By Carl Szabo
Costs are about to go up, our phones will become less safe, and legacy media will have more power if a handful of U.S. Senators get their way as they attempt to recycle three bills that were rejected in 2022. While all three individually have problems, together they would kneecap American innovation and undermine our security.
One of these bills empowers the Biden Administration to break apart our leading businesses like Microsoft, Apple and Amazon based on a feeling rather than facts and evidence, eliminating many of the free services and deliveries we enjoy today by rewriting antitrust law (AICOA). Another forces Apple and Google to allow potentially dangerous apps on our phones (OAMA). The third gives power to legacy newspapers like The New York Times and Washington Post to collude on pricing and potentially undermine news sources which the government deems as “dangerous” (JCPA).
These pitches aren’t returning due to changes in the market. Instead, they’re being recycled because courts are rejecting the Biden administration’s quixotic attacks on American businesses. Just two weeks ago, a judge threw out the Federal Trade Commission’s (FTC) frivolous lawsuit against Meta’s acquisition of virtual reality company Within. Likewise, the FTC lost its case against health innovator Illumnia’s acquisition of Grail. The Department of Justice’s (DOJ) antitrust suits against America’s leading technology businesses are also floundering.
The Biden administration claims it’s losing because “the crime is too hard to prove.” But on antitrust, it’s actually a very easy case to win when you have the facts. America’s current antitrust law is all about showing evidence of consumer harm. Instead of focusing on protecting against harm to Americans, the Biden administration’s FTC and DOJ prefer to attack American businesses they don’t like — and want our laws rewritten so the government always wins.
That’s what the return of these antitrust bills is about: making it easier for the government to attack American businesses the administration doesn’t like. But if the FTC and DOJ get their way, and Congress passes this legislation, American consumers will lose.
If enacted, the AICOA could be used to eliminate Amazon’s ability to sell its own generic products. Generics, of course, provide choice and price competition, lowering costs for all similar goods. It would empower the FTC and DOJ to break apart Google, resulting in more advertisements, less content, and/or more paywalls.
If the OAMA is passed, the FTC and DOJ could force Apple and Google to allow every app on our devices – even the ones that threaten our privacy and security. It could allow the government to require backdoors and security vulnerabilities on our phones. Our most sensitive data will become substantially less secure and exposed more often to bad actors.
And if JCPA is passed, legacy newspapers would be allowed legally to collude on not only prices they charge, but potentially the stories we see through the exclusion of diverse news outlets. At the same time, it would make reporters dependent on the government to provide this handout, disincentivizing American newspapers from holding Congress to account and further eroding public trust in reporting.
These bills are not just bad for America’s businesses but hand dangerous new powers to the government. This power shift is seriously concerning for any government but is especially dangerous in the hands of the Biden administration, which has already shown it will use such increased authority against the American people in favor of whichever goals or industries it prefers at the time.
Over the past couple months, we’ve witnessed the lone conservative at the FTC leave due to the radical disregard of rules and procedures in the name of politics there. The agency’s own staff overwhelmingly has said it doesn’t trust the Biden administration’s leadership, and its Chair, Lina Khan, has responded by pushing for more money rather than improving procedures and workplace conditions.
The Biden administration has also sought out opportunities to clamp down on the free flow of information online. It attempted to create a “Disinformation Governance Board” and has been funding foreign censorship police. It allegedly tasked the FBI with policing the speech of parents about what their children learn. And Biden and his agencies continue to seek out ways to police “disinformation,” without clarifying how doing so would comply with First Amendment rights.
The upshot is simple: these bills would give Biden and his bureaucrats even more power to weaponize the government.
At a time when Americans agree that the biggest threat to the country is the government, the last thing Congress should be doing is expanding its reach. It’s time for Congress to put these bad progressive antitrust ideas to bed and embrace American success—not treat it like the enemy.
Carl Szabo is Vice President & General Counsel for NetChoice, and a professor of internet law at George Mason University’s Antonin Scalia Law School.
