After two years of investigations and a 30-hour debating session on the House floor, the US House Judiciary Committee voted on Thursday to pass a sweeping six-bill package collectively meant to reign in Big Tech’s massive market power.
Even though there’s been a recent bipartisan push for a major tech crackdown, this week’s marathon debate revealed some serious rifts between the two parties—and even within the two parties—that could hamper the bill’s hopes of being passed into law. Some GOP reps, like Jim Jordan from Ohio, have publicly railed against the measures as a group of “Democrat Bills,” that are too radical to pass muster among his fellow Republicans. Some Democratic lawmakers, meanwhile, expressed concerns about some of the bill’s data privacy implications. On both sides, there was vocal concern that the bill’s wording was too broad, and potentially invited some unintended consequences for smaller tech companies, too. Of course, there’s also bipartisan consensus among lawmakers from California that these bills would be bad for their donors constituents.
Despite those concerns, support from both sides of the committee led to all six of the bipartisan bills facing a future vote on the House floor. Undoubtedly, this means we’re going to hear more loud lobbying from major tech players, more debate from regulators involved, and more... Jim Jordan-ing from Jim Jordan.
Here’s what you need to know about each of the bills, so you can follow along with the good, the bad, and the Jims:
First up is the American Choice and Innovation Online Act that’s co-sponsored by antitrust subcommittee head David Cicilline, and Republican Rep. Lance Gooden, from Texas. In a nutshell, this bill is meant to bar major tech companies from preferencing their own products over competitors that use their platforms. This would take aim at Amazon, which has been caught multiple times sneaking products from its roughly 100 private-label brands to the top of Amazon’s search results, while also scooping up data from third-party sellers to create those private labels in the first place.
It would also put the spotlight on Google’s chokehold over the digital ad market, which is currently under investigation from multiple state AG’s in the US and antitrust watchdogs in the EU. If the bill passes in its current form, Google would need to tweak its search results so that Google’s own products don’t hog the top slots the same way they sometimes do now. Instead of being assaulted with ads from Google Flights and Google Hotels the next time you’re planning your vacation using Google Search, under this bill, ads from companies like Expedia or United Airlines would have an equal shot at sharing those top slots.
On top of all this, the bill bars these big platforms from using non-public data to support their own platform—i.e., what Amazon was caught doing with the data it harvested from third-party sellers. Companies that are caught flouting this rule, per the bill, will need to pay a fine of up to 15% or 30% of their total US revenue. And if this bill makes its way into law, the Federal Trade Commission would create a bureau of digital markets that’s exclusively tasked with enforcing the act.
Then there’s the Platform Competition and Opportunity Act that was cosponsored by Democratic rep Hakeem Jeffries and Republican rep Ken Buck. This bill would prohibit any platform with “at least 50,000,000 United States-based monthly active users”—like Facebook, Google. Apple or Amazon—from holding more than a quarter of a competitor’s stock or profits; moves that could dissuade these players from potentially taking over a competitor entirely. Facebook, in particular, has long been guilty of copying, acquiring, or outright killing competing apps using these tactics (and others), in order to maintain its steely grip over the social media market.
Last December, the FTC launched a formal suit of its own against the company over its 2012 acquisition of Instagram, and its WhatsApp acquisition back in 2014. At the time, the Commission accused the company of systematically acquiring competitors as a way to squelch competition. Hopefully, this bill’s passage would keep the company from doing the same thing to smaller rivals (*cough* TikTok *cough*) in the future.
The third bill has been the most controversial, only passing by a 21-20 vote after hours of debate: the Ending Platform Monopolies Act that was backed by Representatives Pramila Jayapal and Lance Gooden. In a nutshell, this bill would make it illegal for a dominant platform—like say, Amazon or Apple—to create their own lines of businesses in order to snuff out “nascent or potential competition” from competitors using its platform. This means Amazon could be forced to discontinue the private-label brands that it sells on its platform, and Apple could be forced to spin off certain apps that come pre-installed in people’s iPhones, like Pages, Keynote, and Numbers.
Some have suggested that the bill would also strongarm Apple into divesting its App Store business entirely. The Store has already been slammed with anticompetitive claims over the mandated cut Apple takes of all in-app purchases, and the fact that it’s the only option for people looking to download apps to their iOS device—the most popular mobile OS in the United States.
All of those sound like unequivocally good things—so where does the controversy come in? Well, some legal experts have argued that the bill would actually end up entrenching tech giants and preventing them from competing with... each other. Apple couldn’t develop a search engine to compete with Google under this bill, for example, and Google would have to sell off YouTube, making it harder for that video company to compete with Netflix. In other words, this bill would hamper the tech giants in some ways, but give them a huge helping hand in others.
Meanwhile, other critics have pointed out that the bill’s current iteration is too broad to actually be useful. In short, the bill leaves it up to the FTC to decide what these companies should be forced into spinning off, and doesn’t offer any guidance on where to draw the line. Should Apple spin off the app store, or all of its iOS software? What about the Apple Watch, or any other sort of hardware? Without those lines drawn in the sand, critics say, the FTC will be left scrambling when it comes time to actually put this bill into action.
Then there’s the Augmenting Compatibility and Competition by Enabling Service Switching Act—a.k.a. the ACCESS Act, co-sponsored by House Reps Mary Scanlon and Burgess Owens. This bill’s main goal is to offer the people using platforms like Facebook and YouTube more transparency and control over where their personal data ends up. Per the Act, platforms of a certain size would be required to let users take some (or even all) of their data with them if they choose to leave the platform, while still being able to actually chat and check-in with friends and family that use these services. If users want, they’d also be able to request that their data be moved to another platform. So as an example, if someone wanted to quit Facebook and take all their data with them, under this bill, Facebook would be required to find a way to let that person still chat with their family over Messenger without reactivating their account. That said, the bill isn’t perfect and doesn’t clarify whether or not Facebook would be able to continue collecting data through this new channel in the same way it did before.
Flaws aside, this bill has still earned praise from the likes of the Electronic Frontier Foundation, that called the ACCESS Act a serious step forward in “breaking the hold large tech companies have on our data.” But that data doesn’t come without risk; as the EFF and others have pointed out, freer flows of data between companies opens up new risks by design; companies could exploit loopholes in the potential law to siphon off more of our data than they already do. That means lawmakers will need to tread lightly with future markups on the bill to ensure it’s as airtight as possible.
Fifth on the list is the State Antitrust Enforcement Venue Act that was spearheaded by Rep. Ken Buck from Colorado. This bill is meant to stop tech titans from shifting antitrust proceedings to courts that might be perceived as friendlier to corporations, driving up the cost of litigation in the process. Just as an example, Google keeps trying (and failing) to move its massive suit with the Texas AG to its home turf in California—a move that would only make the case slower to go to trial. If this bill went into law, Google wouldn’t even be able to petition this kind of move in the first place.
Finally, we have the Merger Filing Fee Modernization Act that was co-sponsored by Reps Joe Neguse and Victoria Spartz, which is meant to offer more resources to the DoJ and the FTC so they can, well, enforce antitrust laws. The bill would set aside a hefty $670 million for the duo’s antitrust divisions, and would substantially increase the fees that major companies like Facebook and Google need to pay for large transactions, like mergers.
To put things into context a bit: Currently, if a transaction between two megacorps involves roughly $920 million dollars or more changing hands, they need to pay a collective $280,000 to the FTC in order to do so. Under the proposed bill, that FTC fee would be jacked up to anywhere between $400,000 for transactions between $1 billion and $2 billion, to $800,000 for transactions between $2 billion and $5 billion, and $2.25 million for transactions $5 billion and above.
Though the fact that these six bills passed is a small victory in Congress’s ongoing fight against the tech giants, the battle won’t be over for... a while; there’s still (a lot of) lobbying to push back against and a lot more political infighting to sit through. Needless to say, if these bills end up in the law books at all, they could look very, very different by the time they get there.