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DoJ to Congress: Thumbs up for big tech antitrust bill

Stopping Amazon, Google, others from prioritizing own products and services

A letter from the Department of Justice to Congress makes it clear where the Biden administration stands on antitrust legislation targeting big tech: They're all for it.

The letter was penned by Peter Hyun, the DoJ's acting assistant attorney general for legislative affairs. As part of his role, Hyun's office regularly issues letters to Congress giving opinions on legislation.

The legislation in question this time is the American Innovation and Choice Online Act, currently working its way through the House and Senate. The latter legislative body has been the only one to move AICOA forward when the Senate Judiciary Panel approved it in January with a bipartisan vote.

AICOA prohibits tech companies from favoring their own products and services over competitors (ala Apple vs Epic Games), and the bill's targets are all but named in the legislation: 

  • Companies with 50 million+ US-based active monthly users
  • Companies with 100,000+ US-based active monthly business users
  • Companies with 1 billion+ worldwide monthly active users
  • Companies with an annual revenue greater than $550 billion
  • Companies with an average market cap greater than $550 billion

Those qualifiers are mostly the same for both publicly held and private companies, with an exception for private company earnings: More than $30 billion net means it qualifies. 

The more important part of the act may be its last qualification: Whether or not a company is a critical trading partner, which the bill defines as an organization capable of restricting a business partner's access to their users or customers and that is required for that business partner to effectively serve said customers. 

Businesses that discriminate against their business partners by prioritizing their own products stifle innovation and reduce incentives for entrepreneurs to try new things, Hyun's letter said. On the other hand, it argues that the bill "may support the growth of new tech businesses adjacent to the platforms, which may ultimately pose a needed competitive check to the covered platforms themselves."

The language of the bill gives some recourse to platforms worried they'll have to support software that could endanger their customers, which has been a common refrain dating back to the Apple v. Epic days. 

Under AICOA, businesses have a legitimate defense if they believe their actions were necessary to prevent a violation of the law, protect user privacy and safety, secure data, secure the platform or maintain or enhance core functionality of the platform. 

With bipartisan sponsors and support as well as a nod from the DoJ, AICOA's path to Biden's desk is clearer than other legislation. Amazon, Apple, Google and other concerned companies have expressed their dissatisfaction with the bill, which has some similarities with Europe's Digital Market Act

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