For one thing, it will be held over video conferencing software due to pandemic-related precautions, eliminating the optics of the four executives being sworn in before an elevated panel of lawmakers. And with 1.3 million documents already obtained from the companies, the testimony is unlikely to include any bombshells.
Regardless of how well-practiced the CEOs are when they take the witness stand, their testimonies will offer an important insight: how they are handling antitrust challenges from regulators with the authority to break them up.
The House Judiciary Committee’s probe into Big Tech is expected to end with a report and legislative proposals about how to update the antitrust laws to respond to new challenges posed by the digital marketplace. Those laws, if enacted, could have far-reaching and lasting effects on how federal and state regulators crack down on anti-competitive practices in the future.
But the more immediate threat to the four CEOs is a potential lawsuit from domestic and international regulators who have been probing the companies on the same issues the House panel is investigating. Those agencies have the authority to order the companies to alter their businesses or make onerous commitments.
Antitrust questions about the four companies are not uniform, and even an hours-long hearing will only scratch the surface. But the way it plays out will indicate how the companies are fighting antitrust arguments behind the scenes, what commitments they’re willing and unwilling to make under oath, and how likely bipartisan antitrust reform really is.
Big Tech on defense
Facebook disclosed a new Federal Trade Commission probe into its business last year, just after the agency closed a privacy probe into the company with a $5 billion fine. Several state attorneys general have launched their own joint antitrust probe into the company. Facebook’s past acquisitions of nascent competitors like Instagram and WhatsApp are a particular sticking point. The company has more than 2 billion monthly users, making it the largest social media platform, and enforcement advocates have argued that those acquisitions could have become serious challengers if they’d been allowed to grow on their own.
Saul Loeb | AFP | Getty Images
Apple’s antitrust woes recently gained broader attention after a public spat with the leaders of a software company called Basecamp. The Basecamp executives aired their challenges in gaining approval for their new email service on Apple’s App Store, the only official place for users to download new apps on iPhones and iPads. While Apple ultimately approved the app and created a new way to challenge its App Store rules, the incident shed light on the potential antitrust issues the EU is now looking into, such as Apple’s opaque process for the app marketplace and its 30% commission fee on digital purchases consumers make through apps.
Some of the tech companies have already tipped their hand about how they will respond to claims monopolistic behavior. The arguments typically start by challenging the premise that they’re dominant players, slicing their markets and competitors to downplay the power they hold across all their spheres of influence.
Apple last week released a study it commissioned that found its App Store fees and practices were generally in line with other digital marketplaces, rejecting the claim that its 30% commission on digital sales was out of step with industry trends.
NetChoice, a trade group that counts Amazon, Facebook and Google among its members, published a report called “Debunking the ‘Big is Bad’ Bogeyman: How Facebook Benefits Consumers.” The report aims to pick apart a recent paper outlining an antitrust argument against Facebook by arguing that it does not monopolize the social media market and faces robust competition from companies like TikTok.
Facebook CEO Mark Zuckerberg’s testimony will reportedly touch on the rise of TikTok, according to Bloomberg, as he paints Facebook as a patriotic counterbalance to upstart Chinese tech companies that lawmakers believe could pose a threat to U.S. security. Separate from the antitrust probe, lawmakers have expressed concern about TikTok and other Chinese-created apps, fearing they could collect valuable data on U.S. users that Chinese officials could force companies to hand over.
Facebook COO Sheryl Sandberg has previously pointed to the rise of Chinese tech companies when defending her company’s position, arguing that even if Facebook is broken up, Chinese companies won’t be.
But that argument may not sit well with lawmakers. Rep. Ken Buck, R-Colo., a member of the Antitrust Subcommittee whose amendment to a defense bill banning TikTok from government-issued devices recently passed in the House, said the threat of Chinese tech firms is separate from that of Big Tech’s dominance.
Rep. Pramila Jayapal, D-Wash., also dismissed the defense, saying in an interview it was not “legitimate.”
“Of course those things all get taken into account but that has nothing to do with monopolistic power and behavior via the antitrust laws that govern the way we do work and govern business regulation in this country,” she told CNBC. “It’s not a compelling factor, and the reality is that these companies have been engaged in this behavior for quite some time, and none of the data that we have seen in our investigation points to this being because China is coming in and trying to take business away. It’s not borne out by any of the documents.”
Spokespeople from Amazon and Google did not provide comment for this article. Representatives from Apple and Facebook did not respond to requests for comment.
Commitments under oath
“Are they going to get any surprising new information? I highly doubt it,” a senior staffer for a Democratic member of the subcommittee said. “Now with that said, I do think there is a possibility that they get new commitments. There’s a difference between new information and new commitments.” The staffer spoke on the condition of anonymity, citing a lack of authority to comment publicly.
Some of those commitments may deal directly with the antitrust issues at hand: Will you commit to never ripping off a product or app sold on your marketplace? Will you commit to never purchasing a company you perceive to be a future threat to your business?
Others could run the gamut of other political issues: Will you commit to never taking down a post by a sitting president? Will you commit to fact-checking ads by all customers, including sitting presidents? Will you commit to never selling user data to third-party providers without their clear and explicit permission?
One line of questioning to watch for is a grilling of Bezos over Amazon’s use of data from third-party sellers. Antitrust Subcommittee Chairman David Cicilline, D-R.I., said Amazon’s witness at an earlier antitrust hearing “may have lied to Congress” about how the company uses data from its third-party sellers to come up with its private-label products following the WSJ report earlier this year. During a hearing in July 2019, Amazon general counsel Nate Sutton said Amazon does not use individual sellers’ data to inform its strategy, though it uses aggregated data to get a sense of how a product category is performing.
Mark Ralston | AFP | Getty Images
Jayapal is likely to take the opportunity to pin down Bezos on his stance on third-party seller data. She questioned Amazon’s general counsel about the data at the previous hearing, and her district includes Amazon’s headquarters in Seattle.
“That is important for me to follow up on because obviously I am extremely disturbed by the fact that their general counsel appears to have lied to me based on reports from papers like The Wall Street Journal,” she said. “So it won’t be a satisfactory answer to say that that was rogue behavior because we have constant data from multiple sources, multiple reports that Amazon does engage in accessing information that hurts third-party sellers and using that to benefit their own products and their own business lines, so I think I will certainly be following up on that.”
She said no decision has been made about whether an unsatisfactory answer could result in a perjury referral, but said once she hears what Bezos has to say, “everything’s on the table.”
Bipartisan appetite for change?
When the investigation was launched last year, it had buy-in from top Democrats and Republicans on both the Judiciary Committee and Antitrust Subcommittee. But Judiciary Ranking Member Doug Collins, R-Ga., stepped down from the position during the probe as he pursues a Senate bid, handing the reins to Rep. Jim Jordan, R-Ohio. Jordan has signaled discontent with aspects of the investigation and hearing format in public letters to Chairman Jerrold Nadler, D-N.Y.
Before he left the role, Collins and Subcommittee Ranking Member Jim Sensenbrenner, R-Wis., wrote to Nadler, condemning remarks he delivered at a fundraising event about breaking up big companies. Nadler was not specifically calling to break up tech companies but rather talking about broad changes needed to dismantle concentrated market power, Politico reported at the time.
Saul Loeb | Pool via REUTERS
Questions from Republican lawmakers on the subcommittee could show how committed they remain to the initial goals of the investigation and whether they still have an appetite to amend the antitrust laws.
Buck said both Republicans and Democrats remain concerned that the large platforms could “stifle innovation.”
“This is the most bipartisan effort that I have been involved with in five and a half years of Congress and I’m really pleased with Chairman Cicilline’s leadership and willingness to share resources and be very open in the approach to these issues,” he said. “The only way really to get a well thought-through law as well as a law that will pass the House and Senate and be signed by the president is to work in a bipartisan fashion and I think Chairman Cicilline has great vision in how he has approached this issue.”
Still, several conservative members have signaled a focus on the alleged bias they believe platforms like Facebook and Google’s YouTube display in their algorithms and moderation of users’ content. Democrats have largely dismissed those concerns, and the companies have denied they build their products and policies in ways that discriminate against conservative voices.
Republican Buck said he expects issues of bias and privacy to come up mainly as they relate to anti-competitive behavior. He plans to focus his questions on behavior he believes should be regulated.
“I think that it’s clear that the [antitrust] law was written at a time when Big Tech didn’t exist and I think that there are new challenges now that we have to update the law to make sure that regulators have the tools and resources that they need to assure competitive behavior in the marketplace,” he said.
No matter how lawmakers reach their conclusions, the question to watch is whether members on both sides of the aisle see these companies as too powerful, and if updates to the antitrust laws could reset the balance.