THE STORY of so-called Big Tech in the United States has been full of bark against businesses accused of monopolistic behavior, and bereft of much bite. Last week, lawmakers in the House of Representatives introduced five bills aiming to change that. The proposals are flawed but provide starting points for regulating some of the country’s most powerful companies.
The bills have the rare advantage of being bipartisan. The House Judiciary antitrust subcommittee’s chairman, Rep. David N. Cicilline (D-R.I.), has partnered with ranking Republican member Rep. Ken Buck (Colo.) to spearhead the package, and each of its parts has a Democratic sponsor and Republican co-sponsor. The cooperation is reason to hope that these bills won’t founder amid the usual gridlock but rather will provide a basis for meaningful negotiation. And negotiation is in order: While a measure to furnish enforcement agencies with more resources and bump up filing fees for the biggest mergers ought to be a no-brainer, its companion pieces of legislation require refinement.
These remaining four proposals would each apply only to a new class of covered businesses that, based on their size and market share, are deemed mighty enough to require restraining. This is sensible. Network effects make it nearly inevitable for a small number of firms to amass huge influence; the right approach is to place limits on those winning firms that don’t apply to others. Only for one of the proposals does this strategy look questionable: Lawmakers want to require that firms make users’ data easily portable from one to the other, so that consumers don’t feel locked in to today’s top platforms. The idea runs up against privacy problems left unsolved in the bill, but on principle interoperability and portability are notions so sound that they should apply to all firms, not only the largest.
Elsewhere, legislators are smart to home in on the titans. Yet still, their proposals tend toward the overbroad. A measure to prevent dominant firms from participating on the platforms they run is likely a nonstarter. An overlapping measure that would prohibit self-preferencing when that kind of dual ownership does occur, however, could have legs. Certainly, this preferencing can harm competitors. But barring preferencing altogether could jeopardize products that consumers enjoy. Legislators should instead devise a balancing test that asks companies to prove the benefits of promoting their own products outweigh the competitive harm. (One such company is Amazon, which is led by Jeff Bezos, who owns The Post.)
The same goes for a proposal to prevent any acquisition by a covered business of any other business that could possibly compete with it, as well as any acquisition that would enhance a covered business’s market position. Why would a business attempt any merger that it didn’t think would help it thrive? It’s reasonable to ask reviewers to cease assuming all acquisitions are pro-competitive. But the new standard shouldn’t be impossible to meet.
It’s good that lawmakers have progressed from the theater of endless hearings to the substance of five bipartisan bills. They must now cooperate their way to a final product that doesn’t punish Big Tech for being big but rather ensures that it wields its bigness responsibly.