This year has brought numerous stories of large Internet companies using their dominance of key Internet functions in ways that harm users and shut out competitors. From Google’s treatment of competing search companies in its results, to Facebook’s playing favorites with its developer APIs, to AT&T and Comcast’s ongoing quest to charge websites for the privilege of reaching you, monopoly power and its abuses are on vivid display. Worse, unlike in previous technology cycles, the dominance of these companies has proven to be sticky. The world has taken notice, with voices from across the political spectrum calling for new approaches.
Market concentration and monopoly power in the online world have always shaped EFF’s work. This year, we’ve begun to tackle competition issues head-on.
One focus is the legal doctrine that deals directly with problems of monopoly power—antitrust law. This year, we’ve given comment and testimony to the Federal Trade Commission on ways that U.S. antitrust could evolve to deal with today’s Internet. We argued in favor of a broader version of antitrust law’s consumer welfare standard that looks to speech, privacy, and innovation harms, not to consumer prices alone.
There are stiff headwinds in the antitrust world. The Supreme Court issued a major decision on antitrust in “two-sided markets” this year that could make it harder to bring claims against the Internet giants. In Ohio v. American Express, the Court ruled that companies who facilitate transactions between two groups of customers (in that case, merchants and credit card users) aren’t liable for practices that raise one group’s prices as long as the other group's benefits are greater. Another pending case will test whether Apple can structure its relationship with app developers in a way that blocks ordinary consumers from suing Apple for inflating app prices.
Antitrust isn’t the only tool for promoting competition. That’s why we’ve continued working to reform legal doctrines that have been misused to thwart competition, including the Computer Fraud and Abuse Act (CFAA), section 1201 of the Digital Millennium Copyright Act (DMCA), and the unthinking enforcement of website terms of service.
We’ve also taken a close look at data portability and interoperability proposals and how they could help break the dominance of the big Internet platforms by allowing users to move without leaving their friends and data behind. And we’ve continued our work on competition at the Internet service provider level, helping to win strong net neutrality protections in California and fighting to preserve small and midsized ISPs as alternatives to Comcast and AT&T.
In the coming year, we plan to work with other groups that are focusing on antitrust and competition in the Internet economy to make antitrust a more useful tool, and to make sure that other laws (like copyright, patent, computer intrusion, and contract law) help to promote competition, not stifle it.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2018.
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