Senator Elizabeth Warren opened Open Market Institute’s “Renewing the Democratic Republic” event on Wednesday with a clarion call for stronger and more wide-ranging enforcement of antimonopoly law. In remarks that received widespread media attention, Sen. Warren urged the administrative agencies to focus on four priorities: 1) breaking up the giants, 2) stopping harmful mergers, 3) prohibiting anticompetitive practices, and 4) putting executives who violate antitrust law behind bars. “It’s time to remind corporate executives and B-school gurus that monopolization is actually a crime… a felony under section 2 of the Sherman Act,” she said. 

Later in the day, Jonathan Kanter, assistant attorney general for the antitrust division at the U.S. Department of Justice, spoke about the Biden administration’s reinvigoration in antitrust enforcement, displayed most recently in the antitrust suit it brought against Google. Sara Nelson, international president of the Association of the Flight Attendants-CWA, AFL-CIO, discussed the power of organizing, saying, “There is only one effective check on organized money, and that is organized workers.”

Other speakers included Pulitzer Prize-winning playwright and novelist Ayad Akhtar, the President of Color of Change Rashad Robinson, legal scholar Joey Fishkin, Hewlett Foundation president Larry Kramer, the former acting director at the Office of Information and Regulatory Affairs K. Sabeel Rahman. economist Cristina Caffarra, and finance professor Luigi Zingales. Financial Times global business columnist Rana Foroohar and constitutional scholar Caroline Fredrickson, who directs strategic initiatives at Open Markets, served as co-hosts of the event.

Organizations supporting the event included the Financial Times, Color of Change, and Public Citizen, as well as the Institute for Local Self-Reliance (ILSR), Farm Action, Americans for Financial Reform, Accountable Tech, Demand Progress, Groundwork Collaborative, News Media Alliance, Economic Security Project, Future of Music Coalition, the Revolving Door Project, the American Economic Liberties Project, Free Press, and Public Knowledge. 

Senator Warren’s comments were reported in Time, HuffPost, the New Republic, and American Banker among other outlets.

Late last year, the European Union passed landmark legislation striking at the heart of Big Tech’s market power. The Digital Markets Act (DMA) will impose a range of new regulatory obligations – dos and don’ts – on the tech giants with regards to how they treat the users and businesses dependent on their platforms. The DMA represents a big step in the right direction in efforts to break the power of Google, Amazon, Facebook, and Apple on our economies and societies, and is testament to the hard work of European policymakers and legislators from across the political spectrum.

The big question now: will the European Commission officials charged with enforcing the DMA ensure the law lives up to its promise?

A quick recap of how we got here. After nearly a decade of trying to use its existing antitrust toolkit to rein in the power of Google, Facebook, and other powerful platforms by imposing numerous record fines, the Commission eventually came to see the need for new rules that spell out in detail exactly what tech giants can and cannot do, without the need for lengthy investigations. The result was the DMA, which will formally take effect in May this year, after which point the Commission will be able to designate Big Tech platforms as “gatekeepers” subject to the act’s provisions. The actual obligations on tech platforms, however, only come into force in the spring of 2024 at the earliest.

The DMA matters for many reasons. While not perfect, it is the first significant legislation passed anywhere in the world that targets Big Tech’s market dominance, and if successful could provide useful inspiration and guidance to other governments. Among other things, the DMA will compel gatekeepers to allow third-party app stores and payment solutions, enable interoperability between their own services and those of rivals, and provide greater transparency to publishers and advertisers dependent on their platforms. It will ban the platforms from self-preferencing their own services and from using data collected from business users to unfairly compete against them.

In short, if implemented effectively, it will make a sizable dent in the anti-competitive fortress Big Tech has erected around itself. In fact, companies including Apple and Google have already begun taking steps to open up their walled gardens well ahead of the DMA taking effect.   

Nevertheless, there are concerns about the Commission’s ability to achieve the DMA’s objectives. Despite the scale of the task at hand, which will involve applying a large number of novel and highly complex interventions to some of the largest and most powerful companies in the world, the Commission only plans to allocate around 150 officials (at most) to DMA enforcement, and has not yet increased its budget for such work in any meaningful way. And already, the regulator has admitted to difficulties in recruiting the technical expertise needed to fill even those roles, in part due to the salary gap between the tech industry and the public sector.

Meanwhile, Big Tech is likely to do everything it can to obstruct effective implementation, from legal appeals and disingenuous interpretations of the legislation, to compliance that aligns with the letter, but not the spirit, of the law. Apple’s attempts last year to stifle the Dutch competition authority’s attempt to improve competition in distribution of dating apps hint at the obstructionist tactics we might expect. 

The stakes are high. Weak implementation and enforcement of the DMA would undermine the EU’s credibility as a regulator of Big Tech, and also discourage other countries from pursuing similar changes to their own laws. To ensure that scenario does not come to pass, the European Parliament, EU member states, and civil society will need to hold the Commission to account.

For member states, that means giving the Commission, through a permanent increase in its budget, the resources it needs to introduce and enforce the new rules quickly and effectively. The resource gap can also be further narrowed through the formal role in enforcement assigned to member state competition authorities by the DMA, which they should make full use of.  For civil society and members of the European Parliament, it means helping to rigorously monitor gatekeepers’ compliance with the DMA, while watching out for any signs of regulatory capture. The European Parliament’s recently established working group on DMA implementation, chaired by MEP and leading competition expert Andreas Schwab, will be critical in this regard.   

As for the Commission itself, it must demonstrate it is serious about using the threat of breakups — a measure provided for in the legislation — to force gatekeepers to comply with the law. The Commission’s unwillingness to do so in the past has severely undercut  respect for its authority.

Earlier this week, Open Markets Europe, along with partner organizations Foxglove, the Balanced Economy Project, and SOMO, formally called on the European Commission to review Amazon’s $1.7 billion purchase of iRobot, which would give the retail giant a dangerous stronghold in the nascent market for smart home devices. The submission reads in part: “Consumers risk being further ‘locked’ into Amazon’s powerful ecosystem. Innovation will be stifled. Competitors will face even higher hurdles to compete, not only in the smart vacuum or home robotic devices market, but in nearly every market Amazon’s newly bolstered ecosystem will touch. Consumers and competitors will pay the price.” The joint submission was covered by Bloomberg among other news outlets.

Media reports say the the pressure on the EU has borne fruit and it’s preparing an antitrust case on Amazon’s iRobot deal. According to the Financial Times, regulators have sent Amazon detailed questions over the proposed transaction ahead of a probe.

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