Coronavirus could delay tech antitrust action
"I would expect all of the timetables that authorities have developed are going to be stretched out," former FTC Chairman William Kovacic said.
Barely anything is business-as-usual at the moment — and that includes scrutiny of the world's largest technology companies.
The ongoing tech antitrust investigations of the Federal Trade Commission and Department of Justice are both set to be hit by workplace changes resulting from the coronavirus pandemic. And that could cause long delays to any action taken against the companies, according to experts who spoke to Protocol.
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"It's just impossible for FTC lawyers and economists to work at the same pace from home — and that's necessarily going to slow the progress of the inquiries down," said former Federal Trade Commission chair and current law professor at George Washington University William Kovacic. "I would expect all of the timetables that authorities have developed are going to be stretched out," he added.
An FTC spokesperson told Protocol the agency could not speak to specific investigations, but that it "is adjusting to these new and challenging circumstances" and "virtually all" employees are now working remotely.
Staff will need time to adjust to the new normal of working from home, and many are undoubtedly splitting their attention between work and other needs, such as caring for children now kept home from school, Kovacic said.
The "ubiquity of digitization" means that "it shouldn't be too difficult for many forms of antitrust enforcement to occur without requiring physical proximity of human beings," said Tad Lipsky, director of the Competition Advocacy Program at the Global Antitrust Institute at George Mason University. However, he said, there are "key points in the process" that could be difficult to make work remotely, such as aspects of search and investigation that may require physical access to offices and records.
The agency is in the midst of a number of inquiries into big tech companies, including an antitrust review of a decade's worth of acquisitions by Alphabet, Apple, Amazon, Facebook and Microsoft that were too small to trigger federal reviews at the time of execution. The DOJ is also conducting a similar wide-ranging review of online platforms.
Action on both fronts is taking place from the homes of government employees right now.
Last week, the FTC outlined steps it was taking to reduce the spread of the virus, including canceling "noncritical" travel for staff, disallowing unplanned visitor access to FTC offices and a mass shift to telework with "limited exceptions."
"Almost all internal and external meetings will be handled by telephone or videoconference, and parties should assume that meetings will be held remotely, rather than in person, until further notice," Federal Trade Commission Executive Director David Robbins said in a press release. "Despite these procedural changes, the FTC will be conducting the business of the Commission without interruption," he added.
At the DOJ, the Antitrust Division also made changes to how it handles investigations, in order to try to keep business rolling even though workers are "under a mass telework directive," according to a statement released last week.
The division is conducting all meetings via phone or videoconference when possible, allowing for electronic filings about mergers and acquisitions, postponing depositions to reschedule them using secure videoconference systems, and requesting currently pending or to be proposed mergers add 30 days to their timing agreements for reviewing transactions.
But requests for extensions on things like merger reviews is a sign that the shift to telework is stretching capacity thin, Kovacic said.
"Agencies around the world are basically indicating that the various measures to keep people out of the office and in their homes will slow the efficiency of enforcement and investigation," he said.
Companies, too, may leverage the circumstances to kick legal disputes down the road until things return to normal.
Courts around the country are currently taking their systems "virtual," in a trend that Lipsky expects to continue with further limits on civil and criminal procedures "ordinarily conducted as in-person events." We're already seeing that happen in antitrust action with the DOJ move to postpone depositions so they can be done remotely at a later date.
But if counseling a defendant, Lipsky said he would not to want to "concede that the opportunity to present witnesses, cross-examine witnesses, and allow the defendant to confront accusers" could take place virtually, rather than in the physical presence of a trial judge.
While the pandemic causes delays to scrutiny, some civil liberties advocates warn that the response to coronavirus by big tech companies could also be creating new privacy concerns that may need further oversight from regulators.
"We're keeping our eyes open," said Electronic Frontier Foundation senior staff attorney Adam Schwartz, noting that there are reports that the government is trying to work with companies to use cellular location tracking and facial recognition to track spread of the virus. EFF is skeptical that such techniques could actually bolster public safety in this crisis — but even if proven effective, the organization still believes that it should be carried out with stringent oversight and transparency, which would mean additional regulation.
Lawmakers on the hill also raised the alarm. On March18, a group of five Democratic legislators led by Sen. Bob Menendez sent letters to Vice President Mike Pence and Google chief executive Sundar Pichai asking for details about how the company was approaching data collected through the site.
"There are numerous privacy concerns about such an endeavor," the letter noted. "If Google and its subsidiaries fail to establish sufficient privacy safeguards, Americans who use the site will be more susceptible to identity theft, negative credit decisions, and employment discrimination."
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But even with that scrutiny, the COVID-19 pandemic may represent an opportunity for Silicon Valley's relationship with Washington: efforts to help fight the outbreak "could" put tech companies in a better place with regulators, according to Kovacic — if they approach the situation in the right way.
"Their image has taken a beating in the last couple of years, and if you wanted to demonstrate that you are patriots and publicly spirited, now's the time to go way out of your way to be good citizens — to use your wealth and economic position for good," he said.