It’s the beginning of a new year for some of us, so let me wish all of you a good year, and a sweet year, even if you don’t know what I’m talking about.
Private Anticompetitive Censorship Continued?
Turning back to the agency beat: in a Sept. 7 guest essay in The New York Times, former Assistant U.S. Attorney General Jonathan Kanter responded to Judge Amit Mehta’s recent decision on remedies in the Google Search case. Kanter seemed to think that Mehta had let Google off easy, or so I surmise from Kanter’s title: “Why Google Got Off Easy.”
I did not think much of the essay, so I dutifully wrote a letter to the august editors of the Times saying why. Alas, my missive was, in current agency parlance, “CENSORED,” and surely this is a case of viewpoint censorship if ever there was. Cue the “help, help, I’m being repressed” scene from “Monty Python and the Holy Grail.”
OR, just to play devil’s advocate, maybe this was an ordinary editorial decision. I’m not famous, or even “agency famous,” so it’s no surprise that the New York Times has never invited me to write a “guest essay,” and I imagine that they do get thousands of letters, at least. I’ve no reason to suppose that anyone on the editorial board would recognize my name, supposing that one of them even saw it. The automatically generated reply acknowledges my submission but suggests that letter writers cannot even expect as much as an automatically generated rejection.
It is true that the Times has a certain editorial slant, and like many papers, has tilted in favor of featuring populist, neo-Brandeisian perspectives far from my own. Here, for example, is yet another bit on Lina Khan from the Sept. 14 edition. There are several brief nods to the “fair and balanced” journalism thing, but it’s more hagiography than anything else.
On the other hand, I gather that there’s a market for that sort of thing, and it’s not as if I regularly get featured in the Wall Street Journal either. It’s entirely possible that no one at the Times even read my letter before “deciding” not to publish it.
And maybe that’s ok. I might like to be read far and wide, but I’d rather that the White House and federal antitrust enforcers avoid intervening on my behalf to that end. I suspect that my wish will be granted, at least on a narrow reading of my wish.
As it happens, I can circulate my thoughts on Kanter’s guest essay, the cruel indifference of the Times editorial board notwithstanding.
By way of a very-abridged background, way back in March, I wrote about the U.S. Justice Department’s (DOJ) revised proposed final judgment in the Google Search case. It seemed a bit of an overreach to me. Or, as I said at the time:
The DOJ has a judgment from the U.S. District Court on liability, pending appeal. If it stands, there’s still a question of a remedy that’s appropriate to the conduct at-issue. And while DOJ’s revised proposal is slightly more temperate than their initial proposal, the initial proposal was ludicrous and key elements of the crazy remain.
I wrote about “The DOJ’s Not-so-Modest Proposal” last December and won’t recapitulate my account of the folly. But I would point to additional useful posts by my ICLE colleagues Brian Albrecht and Geoff Manne, as well as articles by Greg Werden and Bilal Sayyed in a collection on the case that I helped organize for Concurrences Review. For a quick take, back in 2023, Herb Hovenkamp considered potential remedies in an essay in ProMarket, and he had this to say about the possibility of structural relief:
How about a breakup? Even if it were technically feasible, a structural breakup of a natural monopoly search engine would be a disaster. It would impose two or more suboptimal products on consumers. This is not a stable situation, and it would immediately deteriorate the quality of search for both of the resulting products.
There’s plenty more to say, of course, but I suspect that each and every one of my readers has at least some familiarity with the case, and perhaps a great deal. Here’s what I wrote to the Times:
Jonathan Kanter’s September 7 Guest Essay cites an old hockey platitude: “You miss 100 percent of the shots you don’t take.” He neglects to mention that it’s hard to hit one goal while shooting at another. The Government argued that Google’s payments for default placement of its search engine—on iPhones and elsewhere—unlawfully protected the market power in “general search” that Google had initially acquired by procompetitive innovation. Perhaps, under Judge Mehta’s defensible yet controversial reading of the DC Circuit’s 2001 antitrust decision in Microsoft. That’s what Judge Mehta concluded in the liability phase of the trial. Not incidentally, the Government pitched, and the judge accepted, that liability did not require showing when or even whether the payments were the direct cause of any specific amount of harm to competition and consumers. Civil remedies are not supposed to be retribution. While Kanter is right that both incentives and disincentives matter, he is wrong—silly—to argue that this was about whether “it pays to break the law” or “ensuring that people can shape their own futures.” Nonsense. It was about default placement agreements. A difficult case led to a difficult, and measured, decision on remedies.
We’ll see what appeals might be filed, and where the dust may settle. But the rule of law and our ability “to shape our own future” do not hang in the balance.
Actual Guidance, if Not Guidelines?
Federal Trade Commission (FTC) Bureau of Consumer Protection (BCP) Director Christopher Mufarrige delivered remarks earlier this month on the topic of privacy and artificial intelligence. That’s not formal agency guidance, but it’s a helpful window into an enforcement bureau’s own take on part of its statutory mission. The remarks are long enough that they actually say something, yet short enough for a quick read. And they are well-considered. I recommend them.
The remarks include a brief overview of the FTC’s remit in the space—one that considers the FTC’s dual missions as a competition and consumer protection enforcement agency to be complementary. In that, there are echoes of earlier—pre-Biden-era—leadership. See, for example, Maureen Ohlhausen (with Alex Okuliar) on “Competition, Consumer Protection, and the Right [Approach] to Privacy” and Tim Muris (with Howard Beales, a former BCP director) on “Choice or Consequences: Protecting Privacy in Commercial Information.”
For a bit of shameless self-promotion, former mere staffers have written things like this on “The Law & Economics of Privacy” (my co-author, Liad Wagman, at least has gone on to be the dean of the business school at Rensselaer Polytechnic Institute). And I’ll also throw in a plug for my former FTC colleague James Cooper’s Program on Economics and Privacy (PEP) at George Mason University.
