Courts link

To achieve that more ambitious outcome, says Gene Kimmelman, a former chief counsel to the Justice Department’s antitrust division, the government does not have to go so far as to convince the courts that their past decisions were wrong. But it would have to convince judges that those earlier precedents have to be adapted to the competitive realities of today’s winner-take-all markets — markets where customers all want to use the same network or supplier, the price of a product can be zero, and the competitive threat comes from small start-ups offering a different product or technology. Even as these cases proceed through the courts, the issues they raise will also be actively debated in Congress, where there is considerable bipartisan interest in restraining the power of Big Tech. And what happens in one forum is likely to inform and affect the other. The filing of the court cases, for example, is likely to give further impetus to legislative proposals to strengthen the antitrust laws and create a new agency to directly regulate digital platforms, much in the way the Federal Communications Commission regulates telephone and cable companies and the Federal Energy Regulatory Commission regulates electric utilities. In addition to regulating business practices and approving mergers, such an agency could also address issues of privacy, data ownership and regulation of disinformation and hate speech. Just this week, both the British government and the European Union unveiled a proposal for such an agency.