Silicon Valley’s antitrust troubles in Washington got real this week, as it became clear that every possible entity in the U.S. is pursuing investigations that could fuel attempts to break up the nation’s biggest tech companies.
But the confluence of probes raises a host of challenges during the coming weeks and months for the investigators, which include people from the Justice Department and Federal Trade Commission, both chambers of Congress and several state attorneys general.
Much of what happens next will occur behind closed doors, as investigators meet privately with players from the array of industries that the online companies have disrupted — a list that by now includes media publishers, phone and cable companies, brick-and-mortar retailers and even smaller competitors from the tech world. Any company receiving formal notice that it is under investigation will have to disclose it in a public filing to regulators, as Facebook did this week.
Enforcers will have to assess not only whether any of the tech companies is flouting the law, but whether it’s possible to prove in court that the conduct is harming consumers, even though the businesses in question offer products and services that are wildly popular and often free of charge.
That means the agencies are entering uncharted territory — it’s been decades, at least, since such a wide array of major powers across an entire industry have faced this kind of antitrust scrutiny all at once. But with their actions this week, Washington’s biggest antitrust enforcers have sent a signal that they want to hear complaints. And odds are there will be many.
“The core question now is which cases” to pursue, said Roger McNamee, an early Facebook investor turned critic who delivered a speech to the DOJ antitrust division in March. “Now that the government has committed itself to protecting the consumer interest, it will be fascinating which cases they pursue and which companies find themselves in the crosshairs.”