Democrats on the House Judiciary antitrust panel circulated the draft bills to potential co-sponsors this week. They hope to lure at least some GOP members into supporting the bills, particularly Colorado Rep. Ken Buck, a critic of the large tech companies and the top Republican on the panel.
The bills would aim to address these major complaints about the tech industry:
Conflicts of interest: Helmed by Rep. Pramila Jayapal, whose Seattle district includes Amazon’s headquarters, the bill would allow the Justice Department or Federal Trade Commission to sue to break up platforms.
The legislation takes aim at companies like Amazon that operate a dominant platform and promote their own goods or services on it.
Data portability: Sponsored by Rep. Mary Gay Scanlon of Pennsylvania, the bill would require online platforms to create interfaces to let users easily move their data to other services. It would apply to platforms with at least 500,000 U.S. users or those designated by the DOJ and FTC as a “critical trading partner” for other businesses.
The FTC would be empowered to make rules governing the transfer of data between services, and the DOJ and FTC could also sue and seek damages from companies that seek to violate the portability or interoperability requirements.
The legislation mirrors a 2019 measure (S. 2658) introduced by Sens. Mark Warner (D-Va.), Josh Hawley (R-Mo.) and Richard Blumenthal (D-Conn.) that sought to adopt similar data portability requirements for platforms.
Non-discrimination: Antitrust Chair Rep. David Cicilline (D-R.I.) authored legislation to bar platforms from discriminating against rivals — legislation that would prohibit many of the tech giants from “self-preferencing” or favoring their own products.
The legislation takes aim at conduct by Apple related to its App Store and Amazon with respect to its Marketplace.
The DOJ, FTC or state attorneys general could sue platforms for engaging in discriminatory conduct, including if a platform restricts a business’ access to customers’ commercial data or requires companies to purchase another product or service to gain access to the platform. Developers have alleged that Apple illegally ties access to its App Store to the iPhone-maker’s in-app purchase system, which takes a 30 percent commission. Amazon has also faced criticism for considering whether a company uses its fulfilment and logistics services in determining which vendor is the default on its website.
Mergers: A bill sponsored by Rep. Hakeem Jeffries (D-N.Y.) would prohibit platforms from acquiring potential rivals — legislation intended to beef up the FTC and DOJ’s ability to police start-up acquisitions after criticism of Facebook’s acquisitions of Instagram and WhatsApp and Google’s more recent deal to buy Fitbit.
The platform would be required to show “clear and convincing evidence” in court that the potential rival doesn’t compete with it or pose a competitive threat.
Money: The last piece of legislation would increase the filing fees paid to the antitrust agencies for merger reviews. It is identical to a companion bill (S. 228) by Sens. Amy Klobuchar (D-Minn.) and Chuck Grassley (R-Neb.) that was added to the Endless Frontiers Act (S. 1260) the Senate passed Tuesday.