The DOJ isn’t the only source of anti-monopoly enforcement. The Federal Trade Commission has enormous, mostly unused power to rewrite the rules of competition. Without Congress’ approval, the FTC could issue rules, for example, that simply ban the use of noncompete clauses, binding arbitration clauses in user agreements, or the kinds of exclusive contracts that have come under scrutiny in the Google case. The tricky thing is that FTC commissioners serve seven-year terms and can only be fired for cause. Right now, the commission is made up of three Republicans and two Democrats, all of whom joined in 2018. That means one of the Republicans will have to retire or return to the private sector in order for Biden to get to install a majority that will enforce his priorities.
The even bigger question is just what those priorities are. Biden didn’t talk much about antitrust on the campaign trail. His extended network of informal advisers included both anti-monopoly hawks and Big Tech defenders. The key thing to watch out for is which side of the debate ends up with more influential roles in Biden’s administration. You can bet the jockeying is already underway.
So whether we’ll see bold, aggressive, consequential antitrust enforcement and rulemaking against Big Tech during the Biden administration, or just modest, incremental, possibly-doomed-in-the-courts stuff, is still up in the air. What’s for sure is that we’ll see something. Antitrust gets five out of five JBEICs.
Privacy Law
You might find this hard to believe, but there was a time not so long ago, maybe 2019, when tech policy nerds thought Congress might actually pass a bipartisan federal data-privacy law. A number of senators have introduced a variety of bills, most of them in good faith, many of them somewhat intelligent, and some of them with sponsors from both parties. Wild, right?
But the two parties never could see eye to eye on a few sticking points—chief among them whether the law should let ordinary people sue companies for violations, and whether it should preempt state laws that go further.
Still, when the 117th Congress gets down to business next year, there will be a few decent legislative proposals already on the table and no all-consuming presidential election to ruin the prospect of getting anything done. And with the passage of Prop. 24 in California, otherwise known as the California Privacy Rights Act, there’s extra pressure. The act is quite a bit more aggressive than the state’s existing privacy law, and once it kicks in, it could become a de facto national standard, given California’s outsize clout in the economy generally and the tech sector in particular.
