The Macomb Daily

Biden finds breaking up Big Tech hard to do

- By Will Oremus, Cat Zakrzewski and Naomi Nix

Google has been quietly assembling a phalanx of former Justice Department lawyers as the tech titan gears up for the regulatory fight of its life against their former employer.

The Department of Justice offensive, a pair of lawsuits aimed at breaking up the search giant’s dominance, will play out in the courts — reflecting a new phase in the Biden administra­tion’s years-long effort to rein in Big Tech, after a sweeping antitrust package stalled in Congress.

When President Biden took office, he picked trustbuste­rs to lead key agencies amid bipartisan calls to curtail the largest internet firms’ power over the digital economy. But halfway through his term, the movement’s losses have outpaced its wins, key figures are stepping down and Republican control of the House has taken bills that could break up tech giants off the table.

Now the terrain has shifted from Congress to the courts. Last month, the Justice Department and eight states filed a suit aiming to break up Google’s lucrative ad business, while a 2020 suit filed under President Donald Trump alleging it monopolize­s online search is headed for trial later this year. Meanwhile, Federal Trade Commission Chair Lina Khan, an antimonopo­ly crusader, is pursuing a suite of ambitious lawsuits aiming to break up Facebook parent Meta and block heavyweigh­ts such as Microsoft from gobbling up smaller firms, while seeking to rewrite federal rules on antitrust enforcemen­t. And last week, the Supreme Court heard arguments in Gonzalez v. Google, a case that could weaken internet companies’ prized liability shield.

The antitrust reformers who cheered when Biden tapped Khan to chair the FTC, Jonathan Kanter to lead Justice’s antitrust division and leading Big Tech critic Tim Wu as a White House special assistant insist their uphill push to rein in the world’s richest companies is still gaining traction, despite a string of high-profile setbacks. But the tech industry is willing to spend big to hold its ground. And persuading courts to rethink decades of business-friendly precedent presents a challenge as daunting as pushing legislatio­n through a divided Congress.

“Several people came into this administra­tion with complete confidence that they knew how these industries should work … and they just asserted an agenda that, ‘We’re gonna fix this,’” said Mark Jamison, a nonresiden­t senior fellow at the right-leaning American Enterprise Institute. That agenda, he said, is now “sputtering.”

Still, the agencies say they have only begun to fight.

The Google case is part of a surge of antitrust lawsuits filed by Kanter’s Justice Department and Khan’s FTC targeting some of the biggest players in industries ranging from tech to pharmaceut­icals to book publishing. In December, the FTC filed to block Microsoft’s $69 billion acquisitio­n of gaming company Activision Blizzard, part of a new strategy to bring frequent long-shot cases.

Such moves reflect the administra­tion’s argument that competitio­n policy, rooted for decades in the free-market ideals of the 1980s, must be rethought for the internet age.

At Justice, Kanter has created a new litigation team and hired about 20 lawyers in preparatio­n for some of the biggest antitrust battles the department has taken on in decades.

Yet tech’s heavyweigh­ts are digging into their deep pockets as they prepare for court battles that could shape the future of the digital economy. Google alone has hired at least five former Justice Department lawyers in-house, including Jack Mellyn, a former top federal competitio­n lawyer, who now serves as the company’s strategy counsel. The company has also retained the services of four outside law firms that have nearly 20 former Justice lawyers among them.

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