Introduction to Our Research on Antitrust Cases

When looking at antitrust cases in digital markets, we see two competing sides of the debate. On one side, we see people who believe that these large tech companies were the first to innovate and should therefore be rewarded for that innovation. The fact that the emergence of technology markets happened within such a short timespan lends itself to the belief by many that innovation is the source of market dominance. Facebook was launched at Harvard in 2004, its marketplace platform was launched in 2007, and it went public in 2012; from genesis to initial public offering occurred within an 8-year period. Google started as “Project Backrub” at Stanford University in 1996, launched Google Adwords in October 2000, and went public in 2004; again, all within an 8-year period. These tech companies’ products and services have altered everyday life for consumers. This reality leads people to think that these companies have earned the spoils of their achievements and should not be punished for their successes.  

The other side of the debate looks at these companies through the lens of economic and geographic inequality and private control over the public digital town square. These critiques of tech companies cross the political spectrum, with progressive Democrats like Bernie Sanders emphasizing big-tech’s contributions to economic inequality, and conservative “stop-the-steal” Republicans like Josh Hawley criticizing tech companies for concentrating power and limiting free speech.

In Justice Clarence Thomas’s concurring opinion in Biden v. Knight First Amendment Institute — which dismissed as moot the question of whether the President of the United States could legally block users from responding to his account — Justice Thomas questioned whether a President’s Twitter account could be considered “a public forum when a private company has unrestricted authority to do away with it.” Justice Thomas argued that digital platforms “provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.”  He questioned whether immunity should continue to be extended to digital platforms, suggesting instead that common carrier and public accommodations legal frameworks provide a better way of regulating digital platforms, especially those platforms that have substantial market power, like Google and Facebook.  

What was striking to us while preparing this survey was the overlap of mainstream and conservative media critiques of technology companies. The “too big to fail” mantra of the 2008-2010 economic downturn has given way to a “too big to avoid” behemoth of big tech. Many individuals from across the political spectrum see the mass collection of personal data as an unchecked hazard with potentially harmful consequences for consumers. The companies’ wealth serves as a metric for their size. The more a company is worth, the bigger threat they pose to the rights of consumers and to democracy. People on this side of the debate want some type of government regulation on the business practices of these companies, even if that regulation is minimal.