At the tail end of Wednesday’s hearing with executives from Facebook, Google, and Twitter regarding ongoing Russian disinformation campaigns on their platforms, Senate Intelligence Committee Chairman Richard Burr made a remark that raised eyebrows in the antitrust world.
“If, for some reason, you need antitrust waivers to collaborate with each other, please let us know,” Burr told the tech officials in his closing statement. “More importantly, seek for the waiver yourself. This is going to take an overall effort to minimize—I’m not going to use the term eliminate—to minimize the damage, and more importantly the impact, of what Russia is doing, did do, and what others will do next year.”
The social-media executives didn’t respond to Burr’s offer, and the chairman moved on to other issues. But if Silicon Valley’s largest firms are expected to push back against a foreign disinformation campaign coordinated across multiple platforms, they’ll need to work together to shut out nefarious foreign ad-buyers, share data on suspicious accounts, and track troublesome IP addresses. Some experts say a narrowly tailored exemption for that purpose would assuage tech concerns of an antitrust prosecution down the road.
“I think there is a paranoia in Silicon Valley of cartel-like behaviors,” said David Carroll, a professor at the Parsons School of Design and a critic of Facebook’s actions surrounding Russian meddling in the 2016 election. “So a special waiver that would allow them to share their anti-fraud, anti-spam, and anti-propaganda technical signals without fear of being a cartel could actually be a viable way to enmesh the companies together in a unified defense network.”
Other antitrust experts say a waiver isn’t needed. Online platforms already cooperate to take down child pornography and other illegal content, and they could expand that cooperation to include foreign election spending and disinformation activities.
“If social-media companies want to share information with each other to help detect/prevent foreign meddling on their platforms, they could do that today, without any antitrust exemption, as long as they’re careful about how they do it and how much information they share,” said Tom Struble, the technology policy manager at R Street Institute, a conservative tech-policy think tank. If collaboration were facilitated through a third party—Struble floated the Internet Association, Silicon Valley’s lobbying arm in Washington—he believes it wouldn’t violate existing antitrust law.
Some experts worry a waiver would send the wrong signal on antitrust, and could even be used as a blank check for big tech to collude on issues such as ad purchasing and pricing.
“The one thing they can’t do is get together and agree not to sell to somebody, and you don’t want to facilitate that,” said Gary Reback, an antitrust lawyer at Carr & Ferrell with a focus on Silicon Valley. “I think a lot of us all across the spectrum think more antitrust enforcement is the right approach. And if the senator is suggesting something exactly 180 degrees opposite to that, then I don’t know where he’s coming from.”
“The internet industry is engaged with all stakeholders to bring greater transparency to online election advertising and ensure foreign actors cannot use internet platforms to disrupt elections,” Michael Beckerman, the Internet Association’s president and CEO, said in a statement when asked if his group’s members have discussed an antitrust waiver to collaborate on Russia.
Google and Twitter did not respond to requests for comment on the possibility of an antitrust waiver, while Facebook declined to comment. On Thursday, Burr downplayed the notion that legislation to create an antitrust exemption is being seriously considered. “Just a logical question to ask three competing companies,” the senator told National Journal.
Christopher Sagers, a law professor at Cleveland State University specializing in antitrust, said it’s unlikely lawmakers with jurisdiction on the issue—particularly Sen. Mike Lee, the chairman of the Judiciary Antitrust Subcommittee—would be amenable to Burr’s idea. “I expect that it would not ever even get consideration in Senator Lee’s committee unless the internet companies themselves put huge resources into friendly Antitrust Subcommittee members, and I don’t think they’d bother,” Sagers said. A spokesman for Lee did not respond to a request for comment.
Still, some experts aren’t ready to dismiss the possibility of a narrow exemption to facilitate cooperation in cracking down on suspicious foreign advertisers—something significantly more fraught for Silicon Valley than a similar crackdown on child pornography. “You could imagine an antitrust case being brought,” said Brent Skorup, a technology research fellow at the libertarian Mercatus Institute. “If they collaborate to say, ‘Don’t sell ads to this party,’ that could be—with an aggressive prosecutor—an antitrust violation for a group boycott or a horizontal agreement not to deal.”
If an exemption to combat foreign meddling does materialize, experts say it’s important to prevent the harms it could cause to competition in the tech space. “Granting them an antitrust exemption would allow them to share information directly, including pricing info, which could help them better detect and police foreign meddling, but it could also lead to a lot of behavior that harms competition and/or consumers,” Struble said.
“There are unintended consequences to every legislative stroke of the pen,” Carroll said. “Is Burr offering a blank check, or is he really offering a very constrained waiver of something very, very specific?”
For those already worried about the sprawling reach of Silicon Valley’s social-media giants, even a constrained antitrust exemption is a bridge too far. “The antitrust-exemption point was telling to me, because in a lot of ways they already have an exemption,” said Kevin Carty, a technology researcher at the liberal Open Markets Institute. “Facebook has already been allowed to buy basically everyone that it wanted to buy. Google has acquired dozens and dozens of companies and completely knocked down the [Federal Trade Commission] investigation of it from a couple of years ago.”
“We have these problems in spades because we have a few dominant companies in a few markets,” Reback said. “If we had simply enforced the antitrust laws that were on the books for a while, if we had enforced that during the Obama administration, we wouldn’t have nearly the problems we have, because there would’ve been many more platforms out there and it would’ve been harder to infiltrate them.”