How US states and international trustbusters can beat Big Tech
THIS SATURDAY (Jul 11), I’ll be at the Idler Festival in LONDON.
For a minute there, it looked like Big Tech was on the ropes. Over the past decade, countries all over the world have gotten antitrust fever, from South Korea to Singapore, Europe to Australia, and even China:
Even more important: these international trustbusters shared a common enemy with Biden's antitrust enforcers, like Lina Khan (FTC), Rohit Chopra (CFPB) and Jonathan Kanter (DoJ Antitrust Division), who pursued the most aggressive antitrust agenda America has seen since Jimmy Carter and Ronald Reagan killed antitrust enforcement a half century ago.
This international collaboration was an especially rich and productive one. Today's global trustbusters have opportunities for collaboration that their Gilded Age predecessors could only dream of.
That's because modern monopolies are likewise global, running the same scam in every country that they operate in. It wasn't like this during the era of the first Robber Barons. John D Rockefeller's Standard Oil had many of the world's economies in chokeholds, but each country got its own, national chokehold. In the US, Standard Oil monopolized pipelines and refineries, but it found different chokepoints in other countries. For example, in Germany, Rockefeller monopolized the ports:
This meant that American and German enforcers had very little to say to one another. Sure, they had a common enemy, but even if US and German authorities commandeered a fleet of zeppelins and used them to ferry documents back and forth between their respective agencies, it wouldn't have done them any good. The fact patterns about German ports had nothing much in common with the cases being built in relation to America's captured oil refineries.
That's not how companies like Google, or Meta, or Apple, or Microsoft, or Oracle work. Like Standard Oil, these companies are planet-girding extraction machines that are strangling the world's economies. But unlike Standard Oil, these companies run the same playbook in every country, meaning that the facts that establish Google or Apple's guilt in Brussels can be translated and used to run cases in the UK, South Korea and Japan.
The opportunities for international cooperation don't stop there! It's been more than a century since the Gilded Age, and the intervening years saw the US enact the Marshall Plan, through which it redesigned the legal systems of countries shattered by WWII and the Korean War. The technocrats who oversaw the Marshall Plan understood that large, monopolistic firms played a key role in the rise of fascist governments in Europe and Japan, and so they transposed America's landmark antitrust laws – like the Sherman Act and the Clayton Act – onto lawbooks around the world:
That means that it's not just that the same companies are committing the same crimes everywhere around the world – it also means that most of these countries have substantively similar statutes establishing those crimes. A successful case in South Korea will likely be successful in the UK – providing that the company engages in the same conduct in both countries (which, again, it does).
During the Biden years, the UK Competition and Markets Authority ran these international tech antitrust summits in London where US enforcers and their UK, European, Singaporean, South Korean and Japanese counterparts met to plan a shared strategy to take down US Big Tech:
The presence of America's trustbusters at these meetings was key. Not only were they running a string of wildly successful cases against US Big Tech in America, but just by being there, they signaled that the US government would help foreign governments enforce their judgments against US tech giants. That's key, because – as the Marshall Plan's architects could tell you – giant national monopolies often become a de facto, private, unaccountable arm of the state in the countries where they are born, and can call upon the governments they've colonized to protect them from other countries' attempts to enforce their laws.
Which brings me to the Trump election, and the subsequent fusion of Big Tech with Trump's government. It started before Trump took office, when he traveled to Davos to warn the world's governments not to try to enforce their laws over his tech companies. Then there was the inauguration, where tech CEOs paid $1m each out of their pockets for a seat on the dais behind Trump. Big Tech ponied up millions for the Epstein Ballroom, and they also provide key material support to Trump's ethnic cleansing program. If you end up in a concentration camp thanks to one of Trump's ICE chuds, you can blame Microsoft for providing the administrative software; Google for providing the location data used to track you down; and Apple for blocking apps that warn you if you're about to get snatched by masked thugs:
All over the world, tech antitrust has gone into retreat. In Canada, ex-Prime Minister Justin Trudeau created sweeping new powers for the country's Competition Bureau, but now his successor Mark Carney is making equally sweeping cuts to the agency's funding. In the UK, PM Keir Starmer fired the devastatingly effective head of the Competition and Markets Authority and replaced him with the CEO of Amazon UK:
And in Ireland – the place where European tech regulation goes to die – they've just appointed an ex-Meta lobbyist named Niamh Sweeney to regulate the privacy practices of the US tech giants that pretend to be headquartered in Ireland in order to evade their taxes:
This is especially worrying because Meta has a history of binding its former executives with nondisclosure and nondisparagement clauses that forbid them from ever saying a mean word about Meta, or discussing anything they learned while working at the company. There are no ends to the lengths the company will go to in their war on their ex-employees. Take Sarah Wynn-Williams, who has been fined $111m by the company's arbitrator as punishment for her #1 NYT bestselling whistleblower memoir, Careless People. Meta has told Wynn-Williams that she may not appear in public to discuss anything, not just her book, and now they've sued her for standing motionless and silent for an hour on a stage at a literary festival:
When Sweeney was given the job of regulating her former employers, it naturally raised questions about whether she would be legally allowed to criticize – or even talk about – Meta. Sweeney declined to comment on this at all for seven months, and now, at last, she has issued a heavily lawyered statement that seems to affirm that she will be allowed to do her job:
But a close read of her words tells a different story: Sweeney has affirmed that she's not bound by the same gag order as Wynn-Williams, but not whether she has any restrictions on her conduct in respect of Meta. This shouldn't be complicated: if Sweeney is indeed free to vigorously enforce the law against Meta, then she could have published a statement the day her appointment was made public: "I do not have any contractual restrictions on my ability to discuss Meta or its current or former personnel." If she is truly able to do this job, then it shouldn't take her half a year to issue a weasel-worded, heavily caveated statement.
Having narrowly escaped the existential crisis of democratic and legal accountability, Big Tech has captured a string of states: Ireland and the UK, and (especially) the USA. The fears of the Marshall Plan technocrats have been realized: Big Tech is Trump and Trump is Big Tech, and together, they are executing an authoritarian takeover of the USA and countries around the world.
Without the US as a willing partner, other countries have precious little chance of enforcing their laws (which were originally American laws). Just look at how Apple has point-blank refused to follow Europe's new tech regulations:
(Worse: Trump has blacklisted the EU officials who worked on those laws and has permanently barred them from entering the USA, and has now requisitioned more official EU correspondence from Big Tech companies so he can locate and punish more of Big Tech's official enemies:)
Now that the US state has merged with US tech, every country around the world has motive, means and opportunity to build a "post-American internet" of open source apps running at local data centers:
But don't write US enforcers out of the picture just yet! Writing for The Sling, Tyler Clark calls for "regionalized enforcement" by US states against Big Tech companies:
You see, it's not just international governments whose lawbooks were rewritten through the Marshall Plan that have access to America's antitrust laws. When Congress wrote the Clayton Act, Sherman Act and other US federal antitrust laws, they explicitly wrote in the power of state Attorneys General to enforce them. That means that 50+ state AGs all have the ability to wield antitrust against US tech giants.
It seems Congress foresaw this moment, when federal enforcers partnered with American monopolists, trading open bribes for approval for corrupt mergers and other illegal conduct:
But where the Feds fail, the states can pick up the slack. When states fine US companies and order their breakup, it's a lot harder for those companies to flout those orders – unlike the EU or Canada or the UK, America's state governments are first class actors in the US judicial system.
That's where Clark comes in: he calls for coalitions of state enforcers to take on US Big Tech, filling the void created by Trump's pay-to-play fed enforcers. A (future) federal statute could enshrine this system through "regional FTC enforcement centers":
I like Clark's idea, but I think he's missing a trick: US regional antitrust enforcement doesn't need to lean on the US government for resources and collaboration. There are national governments all over the world whose antitrust laws were created by the Marshall Plan, and those are the same laws that state AGs have at their disposal. And of course, tech companies' crimes aren't just the same in France and Japan – they're also the same in New York State and California.
The US government isn't the only game in town. American state enforcers have a global buffet of enforcement partners, and those international enforcers need American collaborators who can collect the fines they levy and enforce the breakup orders they issue. It's a win-win (for the people, for international enforcers, and the states) and a big loss (for Trump's tech companies and his corrupt antitrust dingo babysitters).
One place this could start: joint hearings that call ex-Big Tech employees as key witnesses, daring companies like Meta to invoke their gag orders. It's one thing to tell Sarah Wynn-Williams she can't talk to a crowd at a book festival, but Meta has taken the position that she cannot speak before a legislature or regulator, either.
Wynn-Williams isn't alone. The Big Tech companies are laying off employees by the thousands, thanks to their failed 11-figure AI bets. Those ex-employees know where every body is buried. They know where to find the memos that establish their ex-bosses' intent to create and maintain monopolies and the hardest part of any antitrust case is establishing intent.
Together, US states and foreign enforcers have the opportunity of the century – a chance to shatter the power of Trump's tech giants, who are so key to Trump's authoritarian takeover.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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