The battlefield is getting crowded. European antitrust enforcers have been fighting America’s tech giants for years. In the U.S., both the Justice Department and Federal Trade Commission are headed for the sound of the guns. And now the states have entered the fray. On September 9, 2019, 48 state attorneys general, led by Texas Attorney General Ken Paxton, launched an investigation into Google’s potential violations of antitrust laws.
The revolution in high tech is confronting liberal democracies with some of the most difficult public-policy challenges since the Industrial Revolution, and the dawn of artificial intelligence promises far more to come. Antitrust enforcement will remain an important tool—particularly for protection against certain horizontal restraints on trade, such as price-fixing cartels. But in the current global free-for-all of antitrust enforcement against American’s tech giants, how much good can state officials in the U.S. reasonably do? The answer is: for the public, not much, but for themselves, quite a lot.
A compelling antitrust case against Google might focus on one or two specific business practices that might constitute a restraint on trade under Section 1 of the Sherman Act. But an oceanwide fishing expedition for evidence of potential monopolization under Section 2 of the act will quickly become mired in a complicated economic analysis of supply chains that are changing by the day. And as the states’ subpoena makes clear, they’re pursuing the latter approach—focusing on Google’s behavior in the market for online advertising.
A state case for showing that Google is guilty of monopolization will have to establish that Google has “monopoly power in the relevant market,” and that it willfully acquired or maintained that power “as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident,” ..
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