AG Barr defends antitrust law, as Elizabeth Warren looks to reinvent it

Washington D.C. ⁠— Attorney General William Barr on Tuesday took to the podium at a national gathering of attorneys general in Washington D.C. to attack one of the few bipartisan targets in Washington D.C: big technology.

The speech took place at the Washington Hilton a few hours after House Democrats announced the two articles of impeachment they plan to pursue against President Donald Trump. Barr sought to unify the spectators who were there for the group’s Capitol Forum event, by focusing on the growing power of a few internet giants, whose “size” and “pervasiveness” he said, posed a big concern.

“In D.C., it’s hard to find many things that everyone agrees on. One thing that I found wide and bipartisan support [for] is the government taking a closer look at the leading online platforms and competitiveness of digital markets,” he said.

The U.S. Department of Justice and the Federal Trade Commission are both overseeing investigations of the country’s largest technology companies, which reportedly include Amazon, Facebook and Google. Those investigations come as a coalition of 50 attorneys general are investigating Google and 47 attorneys general are investigating Facebook.

Barr said he had recently met with the attorneys general groups leading the Facebook and Google probes and thought the coordination between them was strong.

Despite goodwill, Barr’s speech was not free of political points. He defended the power of the department he runs and the laws by which it governs. Some have accused the federal government of allowing the deals that gave birth to today’s largest technology companies. Politicians, including presidential candidate Elizabeth Warren, have also said current U.S. antitrust laws are unfit to regulate today’s internet giants. Companies like Google and Facebook have wide-ranging impact on the everyday lives of many Americans. They also offer their product free, complicating a U.S. tradition of judging whether something is a monopoly by its impact on prices.

Warren has railed against the power of big business in America which she claims would drastically change the antitrust policy in the U.S, according to a tentative draft of the bill that was obtained by CNBC. It would also give the FTC more power over antitrust regulation, at a time both the DOJ and FTC are seeking to tackle the power of the country’s biggest companies.

“It’s become clear that not every problem related to online platforms comes within the reach of antitrust laws. Some have therefore proposed expanding the antitrust laws to reaching other non-economic harms. Drastically reinventing the antitrust laws, however, is neither easy nor advisable,” Barr said.

“The Sherman Act (federal anti-monopoly law), which has been around for over a century, has proven flexible enough to adapt to a wide variety of industries including digital platforms. We are open to considering new tools and target modifications. But a wholesale departure from the antitrust laws focused on competition is unwarranted.”

Barr listed a number of issues that fall outside of antitrust which his agency would look at tackling: privacy, transparency, consumer fraud child exploitation or public safety.

As an example of tools beyond antitrust, Barr said the DOJ is “thinking critically” about Section 230 of the Communications Decency Act.

Section 230 provides internet companies legal immunity for their users’ content and also allows them to moderate users’ content with impunity. While tech companies have argued the law, enacted in the 1990s, is still necessary for their continued innovation and ability to remove harmful content from their sites, some lawmakers have contended it now provides too broad of a shield to dominant platforms.

The National Association of Attorneys General sent a letter proposing an amendment that would give states power to prosecute crimes under the statute. The DOJ is likewise “studying section 230 and its scope,” Barr said. 

He also alluded to a frequent claim by conservatives that platforms “selectively” moderate political speech on their platforms under the auspices of Section 230 and referenced a court decision that said the breadth of the law was no longer necessary.

Despite these other remedies, antitrust remains a “core focus of the department’s review,” he said. “Ultimately fair competition can cure many of the ills we see. In a functioning free market, consumers can demand alternatives that better address their preferences, including for greater privacy, more transparency or increased safety. For consumer choice and the free market to work, however, firms have to be playing by the established rules.”