Washington's efforts to rein in Big Tech regularly devolve into circus sideshows, with ill-informed members of Congress more interested in ranting than regulating and the president making threats so extreme that nobody bothers to take them seriously.
A wonk-y lawyer in Colorado thinks he can do better.
Phil Weiser, a law professor and antitrust expert who was elected Colorado's attorney general in 2018, is co-leading the bipartisan coalition of state attorneys general investigating Google's search dominance and serves on the executive committee of a separate state investigation into Facebook, which is led by New York State Attorney General Letitia James.
He says it's the work he's meant to do.
"I am very fluent in technology and fluent in antitrust," Weiser told Protocol in an interview. "So as cases come up like Facebook and Google, it's natural for me to be on the executive committee and to play an important role in both of them."
People who've worked with Weiser say he's a formidable foe to Big Tech because of his heads-down, scholarly approach; it's hard to strong-arm or dump oppo about a former antitrust academic-turned-government official who has hundreds of pages of writing justifying his position at the helm of the Google investigation.
Weiser's not a "break 'em up" ideologue, said people familiar with his thinking. Over the course of his career, he's faced criticism for his willingness to bring industry to the table and has readily admitted to the limitations of antitrust law. "He wants to push the envelope but in a way that's respectful and understands case law and precedent and the judiciary," said Carl Shapiro, an economist at the University of California, Berkeley, who worked with Weiser in Obama's DOJ antitrust division and has consulted for Google.
That may not be enough for progressives rooting for the state and federal cases against Google to result in the company's breakup, a movement that has a loud voice and increasing political power. "The states' effort to investigate Google is incredibly important," said Sally Hubbard, the director of enforcement at the anti-monopoly think tank Open Markets Institute. "If the federal enforcers don't do their job, the states are there to fill the gaps in enforcement."
"The first step is making sure the cases are brought, but the next step is making sure the cases are pursued aggressively," Hubbard said. She's calling for "real solutions that are structural in nature, not promises that are hard to enforce."
But Weiser and people who know him say he is approaching the Google case with an eye toward what is possible under antitrust law — and an understanding that many of the toughest remedies would be hard to get through the courts. "We need to test and be able to prove whatever we are asserting in a court of law, which means we've got to kick the tires on our work and we've got to kick them hard," Weiser said.
"Phil is both very progressive and also very pragmatic," said former FTC Chairman Joe Leibowitz, who is a counsel at Davis Polk & Wardwell. "He understands the need for ensuring that relief is strong … He also has a deep understanding of the courts, which are likely to be somewhat resistant to structural breakup."
Weiser is leading the Google search coalition alongside Nebraska Attorney General Doug Peterson, a Republican who has a good relationship with the Department of Justice. And he has a secret weapon: his adviser Jon Sallet, the former FCC general counsel who helped shape and defend net neutrality law and is guiding the Google search case. Sallet's known for pushing the envelope on interpretations of antitrust law and regulation. "[Sallet is] aggressive without being disruptive – it's a Jedi skill level," said one congressional aide.
Their coalition, which includes Iowa, Nebraska, Colorado, Tennessee, New York, North Carolina and Utah, is expected to file suit against Google in the coming weeks. Their plan is to consolidate their complaint with the narrower case the DOJ has already filed against Google.
The states are following the Microsoft playbook — a case that Weiser was deeply influenced by early in his career.
Twenty years of thinking
Weiser said he's been concerned about the disruptive power of emerging technology platforms since he was involved in the Justice Department's case against Microsoft in the late 1990s. After he spent time clerking for former Justices Ruth Bader Ginsburg and Byron White, he was hired by DOJ antitrust chief Joel Klein to help implement the 1996 Telecommunications Act, the first piece of legislation to address internet access in the U.S. He participated in the Microsoft case during his two years at the department.
"The [question] I've thought about over the last 20 years is, what do we do to protect consumers and to serve society in this emerging world?" Weiser said.
That's the question that prompted him in 1999 to found the Silicon Flatirons Center at the University of Colorado, which holds an annual conference attended by a veritable who's-who in the antitrust world. "That program brought together telecommunications, antitrust and technology scholars, along with leading business people, engineers, economists, lawyers, government officials," said Howard Shelanski, a partner at Davis Polk & Wardwell who has attended the conference more than a dozen times. "He built that into a remarkably successful program that year after year held a series of the most important conferences on telecommunications and technology policy in the country."
At times, Weiser has been accused of maintaining overly friendly relationships with the industry, regularly inviting tech and telecom representatives to play a central role in his conferences and advocating for government and business to work hand-in-hand. After all, it's their money that helped fund the Silicon Flatirons program.
But his approach, for the most part, is best defined as consumer-focused, and he spent years guiding the direction of tech and telecommunications policy from his perch in Boulder, where he "literally wrote the book" on telecommunications law and policy, said former FCC Chairman Tom Wheeler. "Digital Crossroads," a widely-cited rundown of the disruptive power of technology which Weiser co-authored with Jonathan E. Nuechterlein, remained on Wheeler's bookshelf throughout his tenure as chair of the FCC under Obama.
It was that academic work that convinced former head of the DOJ antitrust division, Christine Varney, to hire Weiser during the first years of the Obama administration. As the deputy assistant general in the DOJ antitrust division, Weiser pushed for strong action against corporate power, and on day one began irritating large companies with his push to rescind a Bush-era report on Section 2 of the Sherman Act – incidentally the same law that the DOJ is alleging Google violated.
After Weiser participated in several White House task forces on technology and antitrust issues, Varney said she got a call from Obama's chief of staff at the time letting her know that the White House wanted him to come on board. The White House whisked him away to the National Economic Council, where he formulated the Obama administration's spectrum policy.
"Phil Weiser is a rarity," said Larry Summers, the former Treasury Secretary and Harvard president, who was the director of the NEC at the time. "A first-rate lawyer, with real tech insight and a keen political sensibility. He will over time have, I suspect, a major impact as big tech looms ever larger as a public policy issue."
More than anything, across his time in academia and eventually government, Weiser was seen as a guy who knew his stuff – a nerd who would regularly cite his own academic papers in conversation and enjoyed nothing more than a long, winding conversation about the future of antitrust law in the U.S.
One time, when Varney called in sick, Weiser showed up at her doorstep with a bowl of chicken soup and a brief he wanted her to read. "He said, 'Eat this soup and read the brief,'" Varney recounted. Dale Hatfield, an executive fellow at the Silicon Flatirons Center and adjunct professor who has worked in telecom policy for over 50 years, said he remembers Weiser, his personal friend, contentedly reading a scholarly paper while playing Scrabble against Hartfield and their wives during a vacation in New Mexico.
Weiser brims with energy and is rarely seen without a Diet Coke. During his initial years as a public servant, he was well liked but fairly awkward, according to those who worked with him, with deep roots in academia – not necessarily the ideal politician. It wasn't until he became dean of the University of Colorado Law School in 2011 that he really began to learn to do politics, including the schmoozing and money-raising and public speaking that's part of the job.
"If you'd ask me 10 or 12 years ago, 'What do you think the chances are that Phil would leave academia and become the AG of the state of Colorado?' I probably would've said he's an unlikely candidate," said Leibowitz, the former chair of the FTC and attorney at Davis Polk & Wardwell. "But he turned out to be a terrific AG."
Today, as attorney general of Colorado, Weiser is applying all that wonkiness and passion to the Google and Facebook cases, the most significant government action against tech companies in decades.
"He's been a great asset to the group," said Iowa Attorney General Tom Miller, who is also participating in the coalition investigating Google search and led the states' case against Microsoft in the 1990s. "His expertise has been very welcome and it's helped us a lot on the Google case."
It's typical for state attorneys general to learn on the job and rely on their expert staff to handle the nitty-gritty of complicated investigations, a situation that's easy for large companies to exploit. But "that's going to be a lot harder here," said Michael Kades, a former FTC attorney and director with the Washington Center for Equitable Growth.
"I think it could be really sort of a watershed moment for the role of state AGs in antitrust enforcement," Kades said.
It's not as clear that it will be a watershed moment for Weiser in Colorado. He's up for reelection in 2022, and he's already facing some pressure from the business community in Colorado, where a group of small businesses has been raising concerns about the downstream effects of taking on the country's largest tech companies. In a letter over the summer, those Colorado businesses, organized by the Connected Commerce Council, warned it's "the wrong time to demand changes in digital technology operations and business models."
Jake Ward, the president of the Connected Commerce Council, said many of the Colorado businesses he spoke with questioned the state's involvement in the Google case. "What we heard is, 'Don't they have bigger fish to fry? Why is this what they're spending time on?'"
"They, for the most part, are not interested in the minutia of an investigation or a case," Ward said. "What they're interested in is maintaining access to the tools they use."
For several months, D.C. insiders floated Weiser's name for a number of positions in a Biden administration, including FTC chair or head of the DOJ's antitrust division. But Weiser said he's happy exactly where he is. "I look forward to working with the DOJ and the FTC in the years ahead," Weiser said. "But I'm where I'm meant to be."