Big Tech reform is coming from the courts, not Congress. Is that good?
- The US government won a major Big Tech antitrust battle this week, against Google.
- Washington has several more legal fights brewing against other tech companies.
This week's ruling that Google is an illegal monopolist is a major victory for the yearslong movement to rein in the giant tech platforms.
It's also one of the only victories that movement has had.
And, tellingly, it didn't come as a result of new law, but from a judge's decision.
Because in the US, that's how we're doing things these days: Congress can't or won't act. So, people who want Big Tech companies to change their ways are trying to do it via the courts.
A very brief history lesson: The last piece of meaningful legislation that regulated tech is from 1996, when the internet was a novelty. Since then, Silicon Valley grew pretty much unchecked, and despite some murmurs that maybe someone should do … something about the power the biggest Big Tech companies had accumulated.
But after Donald Trump's 2016 election, those concerns turned into a full-blown movement, with all kinds of lawmakers promising real reform.
And since then … very little has happened. With two exceptions — the 2018 FOSTA and SESTA acts, aimed at sex trafficking on the internet, and this year's bill forcing TikTok to find a US owner or leave the country — Congress hasn't passed any laws that would meaningfully restrain Big Tech companies.
You can debate why that happened — Partisan gridlock? Well-funded pushback from the targeted companies? The fact that most Americans really like individual Big Tech companies? — but the result is still zero.
Instead, it looks like any real reform we see from Big Tech will come from a courtroom via challenges launched by the federal government. This week's Google ruling came out of a lawsuit first filed by Donald Trump's Department of Justice; the Trump era Federal Trade Commission also filed a suit against Meta. And Joe Biden's administration has brought charges against Amazon and Apple, along with a separate case against Google. It also refiled the Trump-era Meta case after a court turned the first attempt away.
And Biden's administration has used the courts in another way, too: It has either sued or threatened to sue to stop a whole series of big tech acquisitions. The track record for the suits it has brought hasn't been very good, but the threat of litigation has, at a minimum, slowed down big tech M&A significantly.
Will any of that mean anything, long-term? We have no idea. The lawsuits in progress could take years to resolve. Appeals like the one the company promises to bring against this week's decision will extend the timeline even further.
It's worth remembering that the last time the government used the courts to try to curtail Big Tech — in 1998 when it went after Microsoft for monopolizing internet access — a federal court declared that Microsoft should be broken up. But Microsoft successfully appealed that ruling and ended up in a settlement that ultimately took effect in 2004. You may have noticed that Microsoft remains incredibly powerful today.
The flip side: At least some former Microsoft executives will tell you that the government's legal case slowed the company down significantly, even if the company stayed intact. They argue that the legal proceedings and everything around them made Microsoft more timid and less able to adapt to shifts like the move from PCs to mobile.
So if you think Big Tech is So Big That Something Must Be Done, taking those companies to court is anything but a sure thing. But in the US, it appears to be the only thing.