Hal Singer has a delightful post up on the dynamics of gatekeeper power in the big tech companies and the role that competition has to play. Though I don’t agree with Hal on all the details, I agree in broad strokes that we (a) need stronger antitrust standards and enforcement and (b) need to supplement antitrust law with other regulatory measures that address issues like privacy, security, accessibility, and other public goods that the market and antitrust aren’t well positioned to provide.
However, I’m most delighted that Hal calls out a member of the Antitrust Concern Troll Bar Association, who criticizes the New Brandeisian antitrust movement for trying to make antitrust do too much, but, as Hal puts it:
. . . never explicitly calls for legislation outside of antitrust, such as privacy or nondiscrimination protections, which would demonstrate the sincerity of his argument.
Inject this directly into my veins. This line of argument is raised all the time by folks who ultimately have a deregulatory agenda, but instead of admitting that, always concern troll about the unintended consequences of addressing a problem with any particular solution and argue that it really should be addressed with some other solution that conveniently isn’t on the political table at the moment.
It’s a pattern. Taking a page from Harold Feld’s seminal breakdown of similar behavior at the FCC, I’ve distilled this into the Antitrust Concern Troll Bar Association’s Playbook for Not Solving Problems:
- If someone is talking about solving a problem with sector-specific regulation, observe that the problem would really be better solved by a general purpose regulator with a stronger commitment to enforcement that won’t be susceptible to capture or harm innovation within the sector—say, the Federal Trade Commission.
- If the general purpose regulator moves to solve the problem, point out the agency’s history of overreach and lack of legal authority, and note that the problem would really be more appropriately addressed by antitrust law. (For bonus points, observe, sadly, that the agency really is susceptible to capture after all.)
- If antitrust law is substantively incapable of solving this problem and people start agitating for antitrust reform, you have two options:
- Point out that the reach of antitrust law is limited for Very Good Reasons™ (I suggest vague, pseudoscientific allusions to neoclassical economics or perhaps a call for deference to Robert Bork’s Force Ghost) and observe that sector-specific regulation would actually be a better solution. (Repeat step 1.)
- Argue that antitrust law is actually working as intended and that the market will fix this problem. (Go to step 6.)
- Either way, make sure to label the proponents of fixing antitrust law with a condescending term like “hipsters.” (This will show that you are both principled and cool.)
- If antitrust law is substantively capable of solving the problem but its enforcers are corruptly refusing or incompetently failing to act, praise their well-reasoned, grounded, and economically-informed restraint and observe that the market will fix this problem. (Go to step 6.)
- If antitrust enforcers look like they might actually act to solve the problem (don’t worry—this hardly ever happens), point out that they are out of control and/or corrupt and observe that the market will fix this problem. (Go to step 6. Really, anytime you’re in doubt, just go to step 6.)
- When the consequences of the market not solving this problem get really bad, gaslight the people pointing out the consequences and question whether it’s really a problem at all. Raise a lot of technical-sounding questions about whether This Is Really a Market Failure™ (spoiler alert: it never is!).
- If the consequences are so bad that they start to attract attention from powerful politicians, point out that the next Congress might need to begin a painstakingly slow inquiry into sector-specific regulation. (Repeat step 1.)