 All right, everyone, I think we're gonna get started. It's exciting to see a nice full room here today. Thank you all for coming. This is a pivotal time for the Federal Trade Commission as the 104-year-old agency faces many questions about the role it should play in the digital age. And so we appreciate everyone taking the time to discuss what's happened at the FTC's recently convened hearings and how the agency can best protect consumers from technological harms moving forward. I'm Sarah Morris, Director of Open Internet Policy for New America's Open Technology Institute. New America is a nonpartisan think tank and civic enterprise dedicated to the renewal of American politics, prosperity, and purpose in the digital age. Our experts work on a wide range of issues from national security to work family balance and of course technology and telecom policy. And the Open Technology Institute works at the intersection of technology and policy to ensure that every community has equitable access to digital technology and its benefits. We promote universal access to communications technologies that are both open and secure using a multidisciplinary approach that brings together advocates, researchers, organizers, and innovators. Last month, the FTC began a series of hearings to explore whether competition and consumer protection laws are keeping up with the 21st century. The hearings are an exciting opportunity for the agency to reflect on its role in protecting consumers in light of the numerous issues by tech companies and failing to adequately protect consumers. Data breaches are now a recurring headline and there is increasing concern over the ability of tech platforms to give preferential treatment to their own products and services. In response, the FTC is just one of the many voices asking what can be done. Here at the Open Technology Institute, we are also asking this question and have welcomed the chance to submit our own thoughts and comments to the FTC as part of its hearing process. Our comments touch on only a few of the topics covered in the hearings thus far. They cover broadband competition and policy, data portability, and interoperability online, the importance of intellectual property and encouraging competition, and the ways in which the digital standard can aid FTC enforcement efforts. Indeed, the FTC hearings are a noteworthy demonstration of the agency's commitment to accountability and transparency, and we applaud the agency for soliciting public input on these pressing topics and for providing a forum for thoughtful discussion on whether the FTC is up to the task of tackling these issues. We're gathered here to build on these discussions. To date, there have been four hearings, each tackling a different area of consumer protection and competition law over the course of a few days, and there are more to come, including one on vertical mergers and the consumer welfare standard this Thursday. We have an all-star panel of speakers who bring a range of perspectives, including two panelists who have testified at the FTC hearings. I'm excited to hear our panelists' perspective, perspectives on the hearings thus far, and their take on what issues are most important for the FTC to consider in its process. A few housekeeping items before I introduce our moderator and bring the panel up to the stage. First of all, a reminder that this event is live streamed. So when we move to our audience question and answer portion of the panel, remember to wait for a microphone before you ask your questions so that the folks joining us remotely can hear the questions and the answers. And for those of you in the room or online, please use the hashtag FTC future in any comments or questions on Twitter. With that, I will hand things over to our moderator, Brian Fung, who is a technology reporter at The Washington Post. Brian, thanks for joining today and I'll welcome the rest of the panel up to the stage. Thanks, Sarah. We've got an excellent lineup, as Sarah just mentioned, and we're gonna have a lot of time to talk about these hearings, whether you've been following them really closely or whether you've been kind of following from a distance and need a bit of a refresher. And so I thought, you know, we'd start by having our panelists say a little bit about themselves and where they're from, and I believe that a number of them have some opening remarks. So Brandy, why don't you take it away? Yes. Afternoon, everyone. My name is Brandy Collins-Duckster and I'm from an organization called Color of Change. Color of Change is the largest online civil rights organization in the country with about 1.3 million members across the nation. I'm not an expert on anti-trust and monopolies, but I know it is not possible to do equity work in the US without talking about the ways in which these issues collide and replicate models of discrimination previously outlawed. Put another way, it's not about the grapes and lettuce or data and most favored nation clauses, it's fundamentally about the people. We co-authored and submitted comments with the Georgetown Law Center co-signed by a number of diverse organizations. And there's three themes that I'm really thinking about, both as I watch the hearings and just in general. One core theme is about the erosion of workers' rights and wages. Labor economists, and I'm so sorry, I hope I don't butcher her name, Dr. Iona Miernescu gave a compelling presentation on the dangers of monopolies and market concentration on the rights and wages of employees. In my head, it's a simple equation where there are fewer places for an employee to take their skills in a system where the ultimate end game is to maximize profit and there's not a vested interest in offering competitive wages, there's no competition. This coupled with open attacks on unions ensure that workers are not offered protections and opportunities that increase economic mobility. Add to that gumbo that 60% of markets are highly concentrated and Houston, we have a problem. The FTC announcing that for every merger, they will consider the potential adverse impact on the labor market is important and we would like to see a deep dive on the disproportionate impacts on marginalized communities also affected into that. To say it plainly, and one of the things that I think I didn't hear a lot about, the bottom has fallen out for black workers. The earnings wage gap between black and white men began narrowing in the 40s and stopped in the mid-70s. It is not likely a coincidence that this coincides with around the last time a monopoly was broken up in the US. Since then the wage gap has widened and the difference today is as large as it was in the 1950s. And even accounting for class, black men are more likely to become poorer than stay wealthy in their own adult households. Black women are paid 61% of what the average white man takes home and the national earning wage for women is 80% so there's still a discrepancy there. This is despite the fact that black women participate in the workforce at much higher rates than other women. So this tells us that black people stand to lose when mergers and monopolies win the day and for groups like us we have to call on the FTC to ensure this is factored into the equation. Another thing that I'm thinking about that I feel like has not really been touched on and I'm interested is how current circumstances have accelerated the demise of black-owned businesses. As Brian Feldman described in his article on the decline of black business, black-owned independent businesses have historically provided avenues for upward mobility for generations of black Americans, just for owners but for those they hire. Black-owned businesses are more likely to employ black employees, especially those deemed unemployable by larger society such as those with criminal records and they're more likely to be and serve predominantly black communities adding access to resources and keeping tax dollars within the local economy. Financial institutions have helped support the next generation of business owners and pathways to home ownership not often afforded by non-black institutions. We've seen much of this be eroded away. We've also seen some issues come up in Silicon Valley which we'll talk about later. I definitely don't wanna talk for too much longer because there's a lot more folks on here but I'll say the final core theme that I'm really thinking about and I know it will come around later but really this conversation about predatory marketing practices. Later this year the FTC will be doing a deeper dive on data collection and privacy issues. My hope that this too will be explored through a race lens. Black and brown communities over index on several social media platforms. The huge quantities of unvolunteered data collected by these companies in addition to some of the reckless practices we've seen have heightened concern that without regulation we are absolutely moving towards a digital cash system that has implications for the stability of our economy. So those are some of the things that I feel like are really important to be addressed at the FTC that can be teased out more and some of the things that I've heard that really stood out to me. Thank you very much. I'm Charlotte Sleiman. I'm a policy counsel at Public Knowledge and prior to that I was an antitrust attorney at the FTC for four years in the Anti-Competitive Practices Division. I am so excited that the FTC is hosting these hearings. I think that it really shows the power that advocacy can have. There's been a debate going on in the advocate community about what more the FTC can be doing, what about antitrust law needs to change and it's great that the FTC is providing a forum for this conversation to be taken more seriously. One of the things that I think is really interesting coming out of the hearings are the areas for further research that people have been talking about. I know at the end of the hearings the FTC is likely to put out a report with some proposals and I'm hopeful that we'll see some of these areas for further research in those proposals. One that I'm particularly pushing for with my focus on digital platforms as Brandy started talking about a little bit would be a 6B study. Now the FTC has this authority to do 6B studies where they can compel information from participants in the marketplace outside of a particular investigation into a violation. What I think is great about this is that they can make their findings public for advocates and the public to see and discuss. When the FTC does an investigation into a company for an antitrust violation it's usually very hush hush. There's not a lot of opportunity for people to learn about what went on behind the scenes and talk about whether the FTC did the right thing in that case. So that's what's great about a 6B study. So I'm hopeful that they will put into the proposals a 6B study on the power that data gives to platforms over not just the people that they serve but also the companies that they serve. In a lot of cases these smaller companies are also competing against the platform at the same time that they are relying on the platform to run their business and there's a lot of data that the platforms get as a result of that business relationship and we don't know as advocates on the outside how that data is being used, how it might be used in the future and I think that would be a great use of the FTC's authority. Some other issues that people have talked about for further research by the FTC since they have this great expertise is looking into artificial intelligence, trying to do a better job of measuring innovation. Innovation is something that is often not given its fair due in merger analyses even though it should be under the current standard they are supposed to be considering innovation but we need more economic research on how we can take innovation seriously and quantify it and do a better job of predicting it. So that's something that I heard from folks at the FTC hearings that we need to do more on that. And I think I'll stop there so that we can go into the discussion. I'm Hal Singer, I'm a senior fellow at the George Washington Institute of Public Policy. I wear other hats but that's probably enough. I'm going to eventually get to the FTC hearings but I'm gonna take a bit of a detour before I get there. I wanna start off by noting that we're all having our hearts today, the 11 victims in Pittsburgh and sometimes it seems small to talk about conversations like this when that kind of stuff is going on in the world. I'm gonna keep it together today, I promise. You know, we could be asking a question you know, why are cable companies carrying Fox News when it continues to spew conspiracy theories about Jews financing caravans carrying allegedly diseases from foreign countries into the US? We could be asking why firms like Expedia or Subaru or Sandals or Gillette are sponsoring and advertising on networks like Fox News in the face of all this hate spewing. We could be asking why Facebook allows its platform to be overtaken by Russian agents and by white nationalists to help propagate these conspiracy theories and the answer to all these questions is simply because it pays. And so long as it pays to allow your platform to be used this way, so long as it pays to peddling in conspiracies, even those that lead to radicalization and eventually to violence, we know that market forces can't be counted on to bring a solution here. And the notion that self-regulation is going to solve this problem, which is often peddled by many of the platforms, is really just a joke and we should call it that. Libertarians have been peddling this joke of a solution for decades as the solution to every problem and attack. And now they've aligned themselves with white nationalists in an unholding marriage of political expediency because their ideas have been so obviously rejected by the mainstream. This is the only bastion that would tolerate it. And it is ironic that given that many of the proponents of libertarianism, including Milton Friedman were Jewish. In fact, I used to be a libertarian. I've outgrown it, but I also used to drink Chianti. I grew that. And that brings us to the FTC's hearings. I think that the FTC did make a good faith effort to open a dialogue on this important conversation. The topics were well chosen. I can't be too harsh on their choice of panelists given that I was one. But the problem is that each one of the panels was filled with either someone from the libertarian camp or a consultant or a lawyer for one of the platforms, or in some cases both. And those panelists did a very good job at mudding the waters and challenging just the basic question of whether or not there is even a problem to be solved. And so I fear that what will come out of the FTC hearing at the end of the day are citations to these good folks in support of doing nothing and maintaining the status quo. The analogy that I like to give is that of inviting climate skeptics to a conference on climate policy. If you can't come to grips with the fact that there's a problem to begin with, you're not gonna make much headway on the solutions. I think that the enclosing, I think the FTC has certain tools that they could use to address some of these problems. I think the biggest problem, and hopefully we'll get into this, is that of discrimination by the platforms against independent content owners who operated the edges of their platform. I think that using section two and monopolization would be tough. There might be some cases that present themselves as harms to quality, but with the exception of those rare cases, I think that section two is gonna be hard. I think that section five, use of the unfair trade practices could be used to go after acts of discrimination, but it too is a bit awkward. And so what I've asked for is that the FTC should ask Congress for a new source of authority that would allow them to explicitly go after acts of discrimination. But of course the Congress can give them everything they want, but the agency is gonna have to show the will to use some of its power here, and I haven't seen that yet to date. Thanks, Michael. Okay, so that's gonna be a little tough act to follow. Since I usually like to start with some sort of joke and then just look at the audience until they're so uncomfortable they laugh. See there you go. So I'm Michael Cadis. Currently I'm the Director of Markets and Competition Policy at the Washington Center for Equitable Growth. Prior to that I spent 20 years at the FTC in various positions. So I'm old enough to remember when I graduated law school or was interviewing for jobs and said, I wanna do antitrust law partner after partner just looked at memes like it's not the 1970s where there's no such, there's really no business to be had there. And then when I was at the FTC for most of those 20 years, antitrust was kind of a technological backwater of expertise and a little Illuminati community that went case by case. And that all changed a couple of years ago. And part of it changed in the, it started appearing issues about competition started appearing in public press like the Economist, like Time Magazine. And so why did that happen? That happened a little bit because there was new research being done by various academics who started looking at the economy and suggest finding increased concentration, but maybe more importantly, finding measures of monopoly power by which we mean firms able to charge prices above their costs, right? And they found that this was increasing and they also found that the first time that there was persistence in those profits. In other words, you might expect certain firms, right, to have monopoly power at any given point because they got there first or they have some advantage, but then competition should whittle those away. But we're now in a situation where the very firms that were dominant 10 years ago are very likely to be the same ones that are dominant today. And so that's I think what has driven why the FTC has had to decide to do these hearings that all of a sudden competition matters in public policy in a way that it hasn't in 50 years. So one of the things that I think that is important about these hearings is to the degree that evidence is discussed and debated, I think frames the rest of the debate and the way I sort of think about this, right? The first question, if you're gonna be assessing competition in the United States, do we have a monopoly power problem? And then second, to what degree is antitrust law responsible for that problem? What degree is it where the antitrust law is failing to protect competition and allowing the undue accumulation and exploitation of monopoly power? Here I think is the issue where maybe there's been less discussion in these hearings. So you will, the hearings, I actually am gonna disagree a little bit with Hal. I actually think most of the panels have been very balanced, say you have people on very different views arguing about these various issues about what sort of conduct's occurring out in the economy that's problematic. But what I think is missing is this, I'm sort of honest assessment that where has antitrust law come in the last 30 years and where I think it's come from, where it has developed is increasingly lenient views of business conduct and has essentially made easy antitrust violations hard and so that neither the agencies nor the courts can deal with the tough issues and this is the worst possible time for that to happen because we are seeing there are all sorts of important issues about tech platforms that seem to have network effects so that once you win a market, you have it. Then however, there opens all sorts of issues that Hal talked about discrimination to potential competitors or acquisitions and so I'll sort of stop there but sort of my sort of big takeaway is I think what sort of the big takeaway of that to the degree we think there's a problem with competition in this country, it is being driven largely by court doctrine that has decided that it is less, has a little too little concern for protecting competition. So Michael and Hal, you sort of touched on two sort of core points, how you were talking about this problem of discrimination. Michael, you're sort of talking about this weird pattern of enforcement we've sort of sort of settled into but I'd really love to challenge the rest of the panel to zero in on perhaps one or two specific problems that they think they would love to see the FTC pick up and beyond the tools that it has now, how you would expect to see the agency's mission changing in the future to try and address those issues. So one issue that I think will be really interesting to hear discussed is the one that's coming up on Thursday of this week. There are gonna be a couple panels discussing the consumer welfare standard and there's been a lot of debate about this recently so I think it'll be great to get more perspectives out there. Basically, I think the sort of point of disagreement is what more can the FTC be doing within the standard that they have and then to what extent does the FTC need more tools. Another piece of the conversation that I hope comes in is to what extent do we need additional tools other than antitrust to solve a lot of these problems. I think sometimes of the example of net neutrality where some people were saying, oh, net neutrality can be solved by antitrust. We don't need this regulatory framework but public knowledge and many other advocates said we absolutely do need regulation in net neutrality in addition to what antitrust can do and I think that there are other areas as well where a regulatory framework is needed in addition to antitrust. I think that dealing with these issues of platform competition is one of those. We need some type of sector specific structural regulation to address broader problems that cannot be sufficiently addressed through the current antitrust framework. Yeah, so I think this piece around discrimination on the platforms is a really big issue and it's playing out in a number of ways. How talked about the kind of dissemination of propaganda and misinformation and disinformation and how that gets spread. These kind of like siloed online experiences that people have where they only have access to politically polarizing content. The way that hate speech gets amplified and not just to general hate speech but particularly violent speech. I think it's interesting digging into the sort of dynamics and culture of how Silicon Valley is built that you do see a lot of these kind of, you can say libertarian ideologies playing out but we can also talk really explicitly about the role of white nationalism in these companies and the fact that so many, a disproportionate number of donations to Daily Stormer come from Santa Clara. So even if you talk about some of the policies that we're developing, there's this how does that get implemented? How does that play out and how does discrimination continue to get baked into a process in a way that harms a lot of communities that are fighting on the front line? And I also wanna kind of like revisit this piece also around business ownership and the impact. Like part of the issue that's playing out here is while we've seen a boom in internet businesses and startups, there still remain clear barriers to black people. Though black women led startups have received an influx of funding from venture capitalists, they still receive 0.0006% of total tech venture funding raised since 2009. Black female startup founders in general only received 2.2% of the venture capital funding and part of the other dynamics that we're seeing playing out is because of these sort of convoluted ad policies and practices and appended in small businesses that are also primed to take a number of hits and being able to advertise on platforms like Facebook and get out to wider audiences. Because of the size and reach of these mega companies, they're then left with little recourse or alternatives of places to expand their business. And Amazon is also this different beast that is eroding away at rights on multiple levels. It's been particularly a dagger to the retail industry and accounts for 44% of online sales and growing. Now that they've moved to storm fronts and swallowing up other businesses, they're further endangering the principles of competition. There's also all of these things around like most favorite nation clauses and covenants not to compete, which are also kind of thrown into this gumbo. But I would love to see more of that get teased out. So the beginning of your response just to be clear is talking about ideological or racial discrimination. And I just want to make clear that Hal, I think you're talking about discrimination from a business perspective against people who have a business relationship with online platforms. Is that correct? I would say that's true. But also part of what I'm trying to say is those things are intermingled, particularly when you talk about diversity of business ownership and the opportunities and who gets locked out when it comes to being able to use their platforms. So I don't think they're completely disconnected, though I take the point. That makes sense. Hal, did you- Can I pick up on this rather, Tron? So I agree with you a hundred percent that we need sector specific regulation to fill a gap in antitrust laws. And I think we're on the same page, at least with respect to net neutrality, that antitrust could never in a million years police the ISPs when it comes to discrimination, discriminating in favor of their own content. And the reason why, quite simply, I'm trying to tie this thread, you mentioned the consumer welfare standard. The consumer welfare standard now, at least as the courts are interpreting them, require plaintiffs to demonstrate a short run tangible injury to consumers. And if you think about what happens in an episode of discrimination, the question is where's the price effect? If I'm an ISP or if I'm a tech platform and I discriminate in favor of my own content, there's likely not gonna be a price effect from that. I'm just re-steering eyeballs away from the independent and to my own. Where's the output effect, right? There's probably not gonna be an output effect. And so if you lack those two things, you're gonna be very hard pressed to go into a courtroom and prevail under the current standards, at least as they're interpreted in antitrust. And so I'm 100% in agreement with you that we need sexual specific regulations to fill the gaps in antitrust for the ISPs. But the same argument takes you to the conclusion that we need sexual specific regulation to fill gaps in antitrust to police the tech platforms. You can't be on one side of that debate, right? The only logically coherent place to wind up is either you're in the libertarian camp and you believe, and I think in bad faith, that antitrust can actually solve these problems, right? Or you're in the camp that says there are gaps in antitrust and you need sexual specific regulations for both ISPs and tech platforms. So Hal, I wanna dive a little bit deeper on this question of the courts. And maybe Charlotte, your point is on that. Well, I just don't wanna, I don't agree with everything that Hal just said. Okay, take it away. Okay. I do think that, you have a surprise. No, I do think that the agencies could be doing more within the current consumer welfare standard, the consumer welfare standard. I think that name can sometimes be a little misleading and it's not only about consumers. It is not only about prices. It can definitely cover competitive harms to upstream and downstream people in the market. It definitely should be including quality and innovation. So saying that if you don't have a price effect and you don't have a consumer effect, you have no case, I think, is going too far. All right, and so. Let's do, let's do Michael and then. Yeah. So one of the things I said when I testified is I actually sometimes find the debate over the consumer welfare standard to sort of obscure the issue. And I think this is sort of an example of this. Right, because the problem is not simply, is not that courts are requiring price effects. It's the fact that the courts don't are making it hard for the government to win on any type of case. So a couple of years ago, the FTC brings a case to block a merger between the only two physician practice groups in Bismarck, North Dakota, which is like an island. Right, you're not traveling to Omaha from Bismarck to get your healthcare. It took them four days, 1600 exhibits to sort of prove that if the only two physician practice mergers, practice groups, essentially the only two, merged, you're likely gonna have an increased market power. If the government's forced to prove to go, to take, it's that hard for them to win that kind of case. The issue is not about whether approving price, it's about how hard the courts have made it for the government to win cases. Second case, the Supreme Court, just this term, the government comes in, it's the American Express case and they say, look, American Express has this restraint. They tell their merchants, if you want our card, you can't just try to steer your customers to another card, which may actually have a lower transaction fee for the merchant, which may mean lower, you could give lower prices to the consumer. And this restraint's so effective that 90% of all credit card transactions occur at merchants who can't do, engage in this kind of price competition. So this is a price competition case, pure and simple. So the Supreme Court looks at it and goes, we're not sure we even like this kind of price competition, because we actually like the fact that American Express is a high quality card and gives its customers all these extra benefits and decides that the government failed to prove that there was market power. And so what's, the issue, this is my point, that there's no way that the issues you guys are raising that the courts are capable of handling them under the way they're currently applying the law and it's not about the consumer welfare standard, it's much more about a general aversion to protecting competition. Oh, I just want to think back to Sharon. I don't know if we're necessarily in disagreement. I agree with you on this point that there is more that the FTC could be doing under existing law. Under section two, for example, and I wanted to stress quality harms, right? A quality harm is something that ought to trigger and succeed under the consumer welfare standard, right? If a plaintiff that the government could show that when a platform, say, degrades its own search results in order to prop up its affiliated content or websites, right? That ought to trigger the consumer welfare standard and the plaintiff ought to prevail in a case such as that. The government hasn't brought that case. There's a paper by Michael Luka and Tim Wu that demonstrates this for a very narrow set of search queries and likely would have to be expanded before you bring that case to a courtroom. But I think that that's an episode or an instance in which the harm does manifest itself in the form of a short-run consumer injury, in which case section two could apply and the FTC would have a decent chance of prevailing, but they're not even pursuing those. So we sort of have this tension, this debate here about is it the consumer welfare standard or is it that the courts are improperly applying the law? And I want to kind of drill down on this question about the courts and how we wound up here. Is it that the judges that we're talking to are generalists and they need to be more specialized or is it appropriate for a judge overseeing any trust case to be a generalist in this case? Is it, I mean, I think it's appropriate and for a long time it worked just fine. What I think happened, what happened was beginning in the 70s, there were sort of two schools of antitrust that developed. One was the Chicago School. It has all of Hal's libertarian friends. Probably where he hung out when he was younger. And their sort of view was that antitrust was overly aggressive and that the market would correct itself and that when judges applied the antitrust laws what they should be most concerned about is about creating a rule that was overly broad because then you would prevent otherwise competitive activity. They said we don't have to be so worried about if it's too narrow because the market always works. So even if we allow some anti-competitive activity over here it'll trigger entry and competition will make it all go away. And this has infected all antitrust doctrine across, it started in sort of what we would call monopoly cases but it has spread throughout all of antitrust law. This worry that if the courts are overly active we will prevent pro-competitive activity. And so you will see courts talking about this all the time but they never talk about the reverse which is what happens when you set a rule of law that under enforces. So in the late 90s the hospitals, there were hospital mergers in the government law seven, eight or nine in a row to the point that the FTC essentially took a decade to study the topic to show that when hospital merges prices go up, there's a big surprise when there's only two or three left and then finally brought a case in turn through administrative litigations and 10 years later went back to federal court. So there was essentially a decade where because we had this very lenient rule no hospital merger was challenged. Since the FTC took a decade to overturn that rule they've challenged I think it's eight or nine and been successful in all of them. So there's a great danger, the courts have just sort of underestimated the danger of allowing anti-competitive activity. Mark, I won't talk about the other school because I've gone on too far. How did you wanna chime in on that? Yeah, just real quick. The climate for plaintiffs, rent interest plaintiffs has become increasingly hostile in the past decade or two but I'm gonna go back to 1992 which is as you know one of my favorite years because their Congress stepped in and they recognized that independent cable networks would not be able to find any protection in the antitrust laws against vertically integrated cable companies that decided to pick off certain networks vertically integrate and then discriminate and favor their own networks. And they passed a set of protections that were designed to fill a gap in antitrust this was back in 1992 before the full and of Chicago school I think pervaded the antitrust practice. And my simple point is that we should press antitrust where we can. I don't wanna discourage this hypothetical case where we have the harm to quality but at the same time we have other tools in the toolkit to try to go after some of these some of this conduct and we shouldn't limit ourselves to just antitrust we could borrow a page from what Congress did in the 1992 cable act and create your favorite sexual specific regulations to fill a gap in antitrust protection. Charlotte did you wanna chime in on that as well? Sure I think that's exactly the right idea. I think there may be additional I mean it's just very early in the process right so I think in addition to the non-discrimination framework that Hal has talked about we should look into other issues such as this one that I've identified about using data to amplify the power the platforms have over the companies that rely on them. But I think we just need to do a lot more research on this which is why I'm suggesting that that would be a good use of the FTC's expertise to do more research and help us sort of figure out what exactly are the levers that we'll need can you elaborate a little bit more on just what kind of data that you're hoping to get out of these companies as a result of some sort of 6B study? Yes so I think a good example is the 6B study that the FTC did on patent assertion entities or patent trolls a lot of the key information to figuring out the issue of what was going on with patent trolls was hidden behind non-disclosure agreements so the public or advocates could not get access to this information that was needed in order to figure out what's going on with patent trolls so the FTC did the 6B study and was able to publish a lot of findings on that. So the types of data that I think are at issue here sometimes it's data that is needed in order to make the platform function. Amazon has to get a lot of data about the purchases that are going on through their marketplace with other retailers that use the marketplace. Just in order to make the platform function but at the same time that data may be very useful to them if they wanted to identify which products were selling really well or which products had very high margins so that they could enter and start selling those products themselves. I should say this is just a hypothetical Amazon has very clearly said that they are not currently doing this but it's something that we could look into. Another example might be when users are using voice commands on their Android phone or on Alexa that data is in most cases going to the platform rather than maybe the app that the user is trying to access through their voice commands. One of the interesting ideas that was talked about at the hearings that I think it was Professor Susan Aithey who was talking about this but in business school the way that they tell people how to make a company successful that relies on a platform is to as quickly as possible sort of end that reliance on the platform. Build a direct relationship with your customers so that you're no longer relying on the platform because these platforms have so much power over the companies that are relying on them. But I think that it could be a lot more difficult to do that if you're not having access to the voice command data that customers are giving if only the platforms are having access to that it could be harder to separate yourself and make your company work on its own without relying on the platforms. So I think there's a wide variety of those types of issues that would be good to look into. Brandy maybe you can talk a little bit about what the public could learn from such a report using the data that we get from these companies what could we learn about how consumers are being affected by the choices that companies are making and decisions that they're making in the design process. Sure I wanna kind of step back and say a word on the judges because again I don't fully live in this like antitrust or monopoly space but what is very true is that there are a disproportionate number of judges that run unopposed where they have to be elected and there's a slew of conservative judges that are being placed where they're appointed and conservative judges tend to skew less government intervention in all ways. There's judges now that even question if Brown v. Board was decided fairly and these judges are moving up the pipeline and many of them are groomed by dark money and corporate forces that fund Alex. So it is intentional that we are encountering judges that we are encountering judges that are like sort of deciding things in the way they are and so that's something that's maybe not like tied to this like deep antitrust language but something that's like fundamentally true across the board. In terms of what I think that consumers can learn I think we have kind of been used to accepting that like privacy is the currency that people have to pay to engage in the digital economy and so there's a lot that people accept or think that they have to turn over people aren't as familiar with their rights that FTC has not played this enforcement role has not taken people to court and so there's a lot left unexplored in terms of one how our data is being used how it's being used for predatory marketing purposes how our children's data is being collected we've seen a lot of again Silicon Valley companies that are rolling out a lot of products that are marketed towards children whether that's you know the cloud pets being sold Alexa like a number of different entities that are collecting data for our children and I think that even if we feel like okay it's a I'm fine with giving up my data like knowing that that's happening to your children knowing that from like a young age even in schools where a lot of this like software is being rolled out in charter schools from Facebook and other major corporations that that's that they're being groomed at an early age and being targeted for predatory marketing practices and things of that nature I think that's something that the public does need to understand a little bit more and to know their rights and power around that. So there's been a little bit of talk speaking of privacy in these FTC hearings about you know how the commission should approach privacy and the use of data by these companies and at the same time there's also a push underway in Congress to try and develop some sort of national privacy legislation. How do you think those two things will interact with one another? Or should should interact with one another. So there's a great FTC hearing coming up next week that will examine this issue but one of my colleagues from Public Knowledge is on it and not me, she's the privacy expert. I'm a big fan of privacy regulation. I think Apple's CEO had a pretty good idea of what it should look like. And I you know and I heard the platforms that have made a living of exploiting users private data saying that if we adopted anything on par with what the Europeans did it would solidify and cement their status as monopolists in perpetuity. And I had a good chuckle at that. So let's bring it on. We need privacy regulation. Next question. Do you think that's true what you said what the companies say about? I don't know how you could cement their platform status any more than it's currently cemented. So that argument just doesn't have any sway with me. And I also just think it's disingenuous. I think that they will come up with any argument possible in order to forestall privacy regulation. And that's their best one. That's their best one. I think they're in trouble. Michael, anything you wanna say on that? I'm a big supporter of privacy regulation. I guess the broader question is if you have a discussion about whether the to what extent the FTC should be involved in doing privacy work, how much congressional legislation might take away from that or potentially grant new tools to the FTC. I'm just kind of curious what do you guys think about that? So in the world I wanna live in, right? You, I think that you would like Congress to set the rules of the road, identify what tools they think the FTC needs or however they wanna impose it. What we've had now is I actually think the FTC has tried to do as much as it can with its current tools. But you have, right, but the real politic of the world is I don't know what Congress does. And they could pass a privacy law that makes things worse. And so until there's something on the table it's hard to balance do we leave this to the FTC or do we look to Congress? I mean it's not ex ante obvious which one would be better. It's just a dependence on where things move. But I mean ideally if we're in a civics class I think we think it would be great for Congress to actually define the legislative priority. So one theory that I think deserves further research and it's hard to say now whether this would actually be how it would turn out. But it's possible that with stronger privacy rules stronger privacy legislation that you could actually see better competition in this ads marketplace. If these types of sort of mechanisms that companies are currently using to collect so much data and target the ads so narrowly to someone who likes cats and lives in Columbia Heights and went to UVA, just all of these details. If that becomes sort of the less commonly used business model if targeting less becomes easier with more privacy legislation it might be easier for new companies to enter that marketplace. And so I think then we might have more competition. I'd be interested for someone to look into whether that may be likely future. I think that as has been said counting on corporations to regulate themselves is very hard going unless we're able to market it as sort of a value add to their bottom line in some ways like a company like Apple or Mozilla have. I think in terms of where we're at with Congress now I mean there is a history of Congress stepping up in the past and doing good legislation. We've come up on the anniversary of COPPA which is the Children's Online Privacy Protection Act. Maybe that's the right acronym. But I think where we are in Congress right now is we're just a year or two off from the FCC put together very strong privacy rules that were immediately obliterated by Congress using the Congressional Review Act. We've seen a lot of attacks on net neutrality which also has privacy protection built in there from our Congress. And so I think where the Congress is at right now I don't have a high level of faith that we can get legislation passed that won't have the teeth taken out of it but I do think we should organize around some of the privacy champions that we have out there like Blumenthal and Marquis and get more people elected and make sure that our riots are on the menu and that Congress people feel like they have an obligation to step up. So I wanna make sure that we have ample time for the audience to ask questions. So in a minute I'm just gonna open it up. And before I do though I wanted to ask a couple more questions. Just be thinking about your questions. But before I turn it over to the audience for a minute I wanted to ask a couple questions about just industry concentration writ large. I mean you have just taking vertical integration for a minute you've got companies that say look we've got a stake in all sorts of different industries. How can you say that we're being anti-competitive? And you saw this most recently with Amazon buying Whole Foods and people who criticized Amazon saying you're gonna wind up taking over the grocery market and Amazon's response was well the grocery market Whole Foods amounts for just one or two percent of the grocery market so how can you say that we're being anti-competitive? I'm just kinda curious I'd love for you guys to think a little bit about industry concentration, vertical integration, how the antitrust laws can, how well equipped are we at theorizing new ideas about harm? So let me take your industry concentration question and direct it back to an FTC panel that was on monopsony. You're probably asking what in the heck does that have to do with the monopsony? Well there was a panel that featured some new work by Marshall Steinbaum and Iona and Jose and it attempts to connect measures of local concentration in labor markets with wages that are paid in that local labor market and the panel included Nancy Rose from MIT and Bob Topel and I won't comment on Topel's remarks because he and I are adversaries in a particular monopsony matter right now but I will comment on Nancy Rose's and her critique was that we can't even though we're seeing correlations, these authors have shown a correlation between concentration at the local level and wages and not a good one, that is the more highly concentrated the lower the wages, she seemed to suggest we can't really infer any kind of causal connection there or take over any story and it certainly doesn't lead to any kind of antitrust implications. And the basic story that her critique is that there's a variable that's being left out and her opinion it's a labor demand and the story would go something like this that a local economy got hit by a weakening or a recession and firms exited and that caused concentration to rise and that resulted in lower wages. So that's the story that Nancy Rose, an alternative story that Nancy Rose would put out but Iona was on the panel pointed out that in their paper they in fact controlled four changes in local demand conditions by coming up with a measure of labor tightness which was based on this number of job postings for vacancies in the local market scaled by the unemployment. And I didn't get to hear Nancy's response to that rejoinder but I did kind of feel like the FTC panel the way that it ended, there was an attack on a finding and it was rebutted and I didn't get to hear the server buttle and I would like to see what there is to that critique because if that's, if the critique just kind of overlooked the fact that this third driver, demand labor demand, if the critique was that it wasn't there but in fact it was there then we haven't really reached a synthesis we haven't gotten to a place of common understanding and as far as I can tell when I walk away from that panel I actually think that there is a story there, there is something going on between industry concentration and the suppression of wages at the local level. The, what you were just saying, how sort of reminded me of a, kind of a theme that I came away with certainly from the first couple of sessions or days of the hearings which was kind of this debate about what economic evidence we're going to consider as valid or as informative or useful for any trust and having watched a few more of these what's your sense of where that debate stands now? Well I think that, and Michael you should weigh in too but I think that there's a push among some that says we should put zero weight on concentration. Concentration doesn't tell us anything, right? And that just flies in the face of what the merger guidelines tell us. I'm not saying that concentration is the end all be all and the story should end there but if you think about how the merger guidelines are written that's the first threshold is the market concentrated and if it's concentrated there's information there that tells you that the market is susceptible to acts that would lead to anti-competitive effects. It's not the end of the story but what I heard at the panel and including from Nancy was this notion that it has zero, zero informative power which to me is just a radical proposition and one that I would hope would not influence the FTC's thinking in any way. So, right man, this is sort of a key issue and I think that where modern antitrust law is in the courtroom and I was at the AT&T time warner trial and I think you were there. Really in a merger case the what the judges are being asked to do is be not sort of a judge of the facts but sort of a judge of the economics and they are presented with very complicated models on both sides and arguments about whether the model has the right instrument variable which I would have to go look at Wikipedia again to remember what that means or heterodesticity there are all these terms getting flying around by these judges who are very smart people but who have 500 cases on their docket most of what they're doing is criminal and all of a sudden they have to stop everything and deal with these really complicated models and what that means in fact is the side without the burden wins and that's what you sort of I think saw was going on in AT&T time warner and one of the most fascinating moments of that case for me watching it was the government's experts one of the best IO economists in the world Carl Shapiro is testifying and in the middle of his testimony he has to stop and have this exchange with a judge and explain that when time warner if AT&T buys time warner so AT&T provides cable and time warner provides content so it's a vertical merger, post merger that giant company is gonna maximize profit that's what it's gonna do now maybe it'll do it in a way that's pro-competitive or anti-competitive but it's going nobody should have to prove that companies maximize profit and yet that's where we are in the state of antitrust law is that judges are so confused that these basic things are what's being litigated and so I think there's always this issue about the defense bar wants to always argue for more complicated economics more requiring judges to make economic decision making and that's really not the role for the economists the value of economics is important is it tells us how concerned we should be about a practice and then what the legal rule should be within the courtroom itself we can't ask judges to be making complicated economic decisions and yet that's where we've been headed over the last 50 years really. Any other comments before I open it up to questions? Cool, yeah let's if you wouldn't mind just waiting for the mic just so that folks on the live stream can hear you. Thanks Brian, Andy Schwartzman from Georgetown Law School I'd like to pick up on that last point and I hate it when people have very unfocused questions at events like this so I apologize for what's about to be an unfocused question my principal concern is vertical integration and as you were just discussing and for what it's worth I don't share the consensus that absolutely AT&T was gonna win the district court case and absolutely it's gonna be affirmed by the court of appeals with the specifics of that case but generally is the problem that for vertical mergers the restricted definition of consumer welfare that focuses so much on price effects needs to be changed to include non-price effects or is the problem that even if the FTC wanted to take a look at it and try to redefine consumer welfare more broadly especially if the consensus is right and the government loses on the AT&T case is the problem that the courts and the justice department which may well feel that its wings have been trimmed that the FTC by itself can't make this change that really require legislative action. So I think it's definitely the latter and I mean the experiment I would do let's say which I hope this doesn't happen although I know Hal disagrees with me on this but let's say the DC Circuit upholds the district court decision. Do we think that that case comes out differently if instead the justice department had gone in and argued the real problem here is we think that this will make it harder say for independent programmers to get access and we'll have fewer voice, less diversity of voice which I think is a total valid concern about a merger do I think that judge is more receptive to that theory than the one they gave? I think if you read that decision he would dismiss that theory in about three pages and so that's why I think it's the second it's not just a simply a question of the agencies have to change the law and the judges have to change so that we open up antitrust law so that it can deal with these problems. Another question. I wanted to turn to an argument that some folks have been making and I'd love for you guys to assess it but this idea that companies are too big and that because of that they should be broken up weigh in on that for us. I can go. So I don't have a problem with the bigness per se I don't think that that's the offense at least that to me isn't really at the heart of what drives antitrust, antitrust is supposed to be about the way that you use your bigness and so tying this back to the vertical integration question that just came back and I was on the vertical integration panel I wouldn't prevent Google or Facebook or Amazon from venturing outside of their core missions and trying to invade certain verticals. To me the act of the invasion is not the sin that is not the bad act in and of itself. The bad act is subsequent to vertically integrating using your platform power to artificially advantage your vertical in such a way as to slant the playing field and to eventually potentially harm innovation at the edges when independence recognized that the playing field is so slanted they would just throw in the towel and so I would like to direct I mean if I could write the rules I keep going back to the 92 template of the Cable Act their Congress decided that we are going to allow cable companies to get into the content space presumably they thought that cable companies had something positive to add in that space maybe they do but at the same time they said independence are a critically important voice when it comes to content and creation and we're not going to allow the vertically integrated platforms just to ride rough shot over the independence and blow them out of the water so we're going to create a set of protections and those protections are going to exist outside of anti-trust and we've seen enforcement at the FCC's ALJ under the section 616 of the Cable Act and I think that this is a tough policy decision but for me that's the compromise you allow them to vertically integrate you don't attack them solely because of their bigness but as soon as they begin to discriminate and favor their own wares when it comes to Amazon or in favor of their own content when it comes to Google and Facebook that you should police them via some non-discrimination standard. Yeah. So I think this also might be a good opportunity to talk about the sort of disconnect that we often see between what people expect that anti-trust can do and what anti-trust can actually do so anti-trust is not in the business of breaking up companies just because they are big big companies get greater scrutiny we pay close attention to them and make sure that they don't violate the anti-trust rules but just being big is not an anti-trust violation and so people who are concerned about companies that are big need to focus on other types of solutions to address their concerns. So that's why we're talking about other ways that we might regulate companies that are big but as far as we know have not committed anti-trust violations under the current law. So I'm hoping that maybe these hearings will be a way that we can get that conversation going more and there need to be more efforts because the hearings are pretty focused on internal within the anti-trust community so we as an anti-trust community need to do a better job of explaining that to the public. Deryn, yeah, go ahead. I was just gonna say, so I entirely agree big is not necessarily bad. I think there is evidence however that there is a monopoly problem in the country and that can, it doesn't have to be a big company to have monopoly problem. I mean that may be a lot of what's going on with the labor monopsony may just have two relatively small hospitals. Sorry, keep coming back to healthcare. Two small employers in a town and they merge and maybe it doesn't affect anything on what they sell but it means they're the only employer for engineers in the town and they have a lot more bargaining power, right? And so, and I agree that we need to be thinking not just about what anti-trust can do but what other things can do but I do think there is an issue right now that anti-trust is not doing all it should be able to do. So during the hearings there was some talk specifically about a particular kind of merger which is that when a company buys up a potential competitor, right? Can you go over that a little bit and your sort of feedback and reactions to that discussion? Was that? Oh, just to the entire panel. Okay, well if someone else wants to take that, that's fine or? Charlotte, do you wanna weigh in first? Well, I'm trying to remember that particular panel. I mean, the issue of potential competition is one that is very important than that we need to be thinking more about, you know, one of the examples that was brought up at the hearing was when Facebook bought Instagram or Facebook WhatsApp and what could we have done at that time to learn more about where those markets were heading and it's a difficult problem looking back now. It seems so obvious that Instagram would be Facebook's largest competitor and why was that merger allowed to go through? But it's hard to say from that perspective, from the perspective of at the time whether that was so clear and unfortunately we on the outside just don't have access to the documents and the information that the agencies had at the time. So it's sort of a difficult situation for the public to be able to assess the job that the agencies are doing because there are these rules of keeping everything very quiet in the antitrust analyses. I mean, Charlotte, is this a matter of, you know, regulators not having the information they need or is it kind of a failure of imagination? What's going on here? I'm not sure. I mean, what I'd like to see is, and I'm not sure that this isn't happening but I would like to know that the agencies are really thinking creatively and putting in the time. In the Amazon Whole Foods merger, that decision was made very quickly and I would feel more comfortable on the outside knowing that they really did a thorough analysis if more time had been taken. But again, it's hard to say. I think we have a question in the very back. Oh, we have lots of questions. My name's Eddie Eiches and I actually was a lueng in recruit and what surprises me most about this discussion is that there isn't a talk about personalities and the internal structure of the FTC. That is at least during my time, the fights between Bureau of Economics and Bureau of Competition and actually, you know, quite a few fights within the, you know, at the commissioner level and of course, we have all new commissioners now. I just like a little more about that because at least as I remember it, that would affect the future of the FTC. So a question about the personalities and the politics within the organization and how that shapes the way things move forward. So first, if I could, I just wanted to follow up on what Charlotte said. Because I think this is a really interesting point in the hearing. The hearing spent and I think did a nice, you know, covered a lot of the waterfront on this notion of potential competition, nascent competition, dealing with these networks. But there was sort of this dissonance that when they were talking to the business people and then I think like Susan Athe, what they were saying is here's our concern. Right, if you have a platform that has network effects, right, so that the sort of the more users you have, the more people want to use you, whether it be search or social media, it can be anything, then you're likely to have a winner take all market, right, that you're not likely to have competition within the market. So in that situation, we're really, we need to be concerned about competition for the market. So with what you were saying, express concerns, like you have to be more concerned when someone with a winner take all market is buying potential competitors, right. So this was, and the VC guys talked about, the Venture Capitalists talked about this. So it was interesting. And then with the legal panel, because they came at it from the antitrust perspective, which is think about potential competition, it's about potential competition within the market, right. So I have product X, you're gonna enter and I buy you. When do we care about that? And so we tend to only care about that is if you are kind of unique, if there's eight other people I can, that could enter, then it doesn't matter that I'm happy to buy one of them. On the network concern, it's almost the reverse, right. Because the platform knows more than everybody else. And they can pick off, there may be seven that look potential competitors who look indistinguishable. But one, they probably have a better sense than everybody. And two, we can't say that there's just one. It may be we just want everybody to be able to compete. And so here was this sort of context where you had this discussion about a competitive problem. And the legal problem is about 20 years behind the times. My chain only was, so sorry, I just wanted to follow up on that. No, I'm so glad you did because that reminds me of one of the ideas that was proposed that I thought was great. So Lena Khan was talking about, I think it was a particular example with Facebook, but she was saying the agencies need to, when they're analyzing these mergers where there may be a case of potential competition, ask for the business intelligence. Ask for the, at a lot of times it's user data or sales data that a platform may have about a smaller company that may rely on them or may be in a similar industry. Ask for the business intelligence that is leading them to make this merger decision, make this acquisition. And that may help us get a better sense of whether this is a real potential competitor than the types of information that the agencies are usually getting. So let me get to the question. I apologize, no, that was my discussion. So I think the structure of the FTC, the point of remembering, it's five members, it's bipartisan, so generally three, there's right now three Republicans and two Democrats. Institutionally, that tends to mean it's historically been a very consensus-based organization. So that means they tend to sort of not, I think if you compare the FTC's enforcement over the years versus DOJ, I don't know, the mean enforcement is different, but the variance is bigger. And so, and then the second part of that, so that's sort of institutionally, that's the FTC tends to like, the commissioners like to find a way that they can come to some sort of consensus. Then of course, there is the various individual commissioner personalities, and I think at this point, they're all relatively new and so I don't feel sort of comfortable comedy in how that's gonna play out. But I do think that relative, that in terms for a Republican administration, Joe Simon seems to be fairly aggressive as an antitrust enforcement, given that we have a Republican administration. Can I say something about the personalities? And without naming any names, but I've been there on behalf of an excluded rival and we knock on doors. And I tend to, I tended to bump into folks who came out of the libertarian camp. I would jokingly refer to them as the Mercatus gang. But when you go in there and you have to plead your case to someone who has a hard time even envisioning what foreclosure looks like, it seems to me that that is not the right mechanism or design to engender the proper amount of enforcement. And so I think that one thing that I find very interesting is that the only complainant that can serve in front of the FTC's ALJ, Federal Trade Commission's ALJ, is the FTC itself, right? So if you're being excluded or foreclose your rival and you can't impress upon the FTC to bring a case on your behalf, it's not, you're not gonna go anywhere. And in contrast at the FCC, independent networks can serve as the complainant in front of the FCC's ALJ. And I think this came out of the 92 cable act or the rules that implemented the act. But whoever came up with the idea, I think it was brilliant because the notion that we should rely exclusively on the agency to bring enforcement is going to lead to under-enforcement, particularly under certain administrations. And so I like the idea of turning over the keys to the independent and giving them, empowering them to file the complaint. Doesn't mean they're gonna win, but at least they'll get their day in court. I wanted to add a couple points. I also wanna throw my piece in on the break it up. Like I think what's true to me is that I've never seen a situation in which having fewer options has benefited low income people. I just haven't seen a lot of examples of that. When you have 90% of media that is owned by six companies, it creates an echo chamber. You are only exposed to a thin slice of opinions. When you're organizing people online at large scale, it is not an option to leave Facebook even if they're selling your information to law enforcement or allowing you to be exposed to violent people who are tracking your information and sending you direct messages. And when Facebook explicitly tracks startups, which we do know they do and buy them up and we're not even just talking about what's happened on Instagram, but the smaller ones to make sure that these aren't even able to get off the ground and provide competition. I do not see a way in which that can benefit groups that need that the most. And so I am sort of in team break it up, but I think what the mistake is, is to assume that just by breaking them up magically, all of our issues are gonna go away because it's not. I think in terms of like my observations on the FCC, so I've done most of my career work at the FCC, Federal Communications Commission. And so I'm pretty new to the FCC space and it has been interesting. I think some of the things that I've observed is that this larger issue around antitrust is, it is one of the rare issues that is sort of bipartisan in nature, which I think is both an opportunity and I'm really scared by that because I feel the way in which these things are being talked about in certain spaces are slanted and so I don't know what the outcomes will be of that, but I do see, unlike the FCC, perhaps more opportunity to work within the FCC, so I'm trying to have faith in that. I think in terms of, I guess I don't know if we're supposed to name names, but I'm new, so I'll name names. I think like Commissioner Chopra particularly has put forth some really interesting thought leadership that I think should be organized behind. I think his name memo where he talks explicitly about any company that's under FTC order should not just be bound on a company level, but executives should also be accountable. He talks about more aggressively going to court. He talks about fines as a way to deter not just as a cost of doing business. I think some of, he talks about facial recognition and all sorts of issues that I think we're not being talked about historically at the FCC, so I do think that he's somebody that I see as a strong leader. I think Sada is still kind of getting her feet acclimated to things, but I do think that there is possibility and potential in the FCC that I don't necessarily see in other regulatory agencies. Charlotte, any quick final thoughts on the personality's question before we move on? I guess what I would just add to the conversation is that I have a great belief in the staff at the FTC. I was there for four years, so I had a lot of exposure to them and they are super smart and they are very dedicated to this mission, so I think that the role that they can play shouldn't be understated and focusing on the personalities of the leadership. I think the staff will do a great job. Okay, let's take some more questions. How about here in the front? Yeah, John Wattmore with pedestrians.org. I'd like to pick up on something you mentioned and that is the market for information versus the market for other sorts of goods and having a limited number of outlets where ideas can get out. How does the FTC, the FCC, how do they look at that, information versus other things? Stump them. I mean, again, I'm new to the FTC. I don't really see them talking about information in the same way I think there's comments that have been submitted around it, but I think they're more focused on services and some of the pieces that have been elevated here and I think that's part of why Silicon Valley, which deals in data and information, is stumping them a little bit because that is sort of a new space for them. That's my quick observation, but others might have thoughts. So I don't agree with that. I think the FTC definitely is looking at information and they can apply a lot of the same processes to data that we do in other industries. So one of the things that has been talked about at the hearings is obviously you have different types of data in different types of markets and so sometimes the data may be non-rival risk or less rival risk, easier for many different people to get access to and then it's not so much of a barrier to entry or if this data is highly difficult to access, then it may create a bigger barrier to entry. I think they have a fair amount of experience now with dealing with those types of industries and that is something that's been discussed at the hearings and at the FTC. Why aren't they finding Facebook? That's a different question, right? Why is it a different question? It's how they deal with information. You said there's good people over there. What's going on? So what would you propose would be the violation that Facebook has committed? Violated as consent order, right? Oh, on the consumer protection side. Right, right. Well, I assume that there is an investigation going on into Facebook and those investigations take time so I wouldn't be sure that that's not going to happen. What I would say, and I agree with what Charlotte said about the staff at the FTC and to degree that investigation about whether Facebook violates consent the longer it's going, the worse that looks for Facebook because it would be easy enough to go in and say hit them with a small fine or hit them with a different consent order. But if you're really gonna hammer, if you're really gonna try to hammer a company in a new way, you get your ducks in a row. I mean, when I first got to the FTC, one of the big issues was, could we get discouragement for competition violations, which is essentially, could we take away the illegal profits? And the first couple cases we brought, we spent a lot of time because we wanted to make sure, we thought about trying, every possible argument was gonna come at us because this was gonna be seen as novel. So I would not say from the fact that the FTC hasn't done anything on the Facebook yet. I don't think that means anything. I think we just have to wait and see what they do. Are there questions? I think we had one here in the second row. Yeah, I'm gonna go back to the big. Oh, please wait for the mic. Sorry. I'm gonna go back to the issue of big. I agree with the people who say big is not bad necessarily and that antitrust doesn't see it that way and no need to break up companies. But I'm wondering if a couple of people suggested sector-based approach, whether we could come up with a model that says when an industry reaches a certain point that they're big enough that they, there's a danger that they exercise monopoly power, more market power that we impose some kind of constraint in the form of a net neutrality, common carrier, non-discriminatory requirements. And I think the flip side, the FCC had AT&T-dominant carrier, but as they got less dominance, they reduced the regulation. Should we have some kind of standard that goes the other way so that when you reach this point, you have this much power, it triggers this kind of sector-based regulation. The FTC would have that. So again, I go to the template in the Cable Act. There's this evidentiary standard that complainants have to meet in order to prevail under the non-discrimination standard. If you don't meet them, you lose, right? And I won't take you through all three of the prongs, but the third prong is that after you've shown discrimination that as a result of discrimination, the complainant is materially impaired in their ability to compete, right? And what that prong does is it largely immunizes the small cable operators from any liability under the protections. That is, if you were to try to bring a program carriage case against a mom-and-pop cable operator in Topeka, you might be able to show discrimination, but you'd likely fail on that third prong whether you were materially impaired in your ability to compete. And so I think that rather than someone asked me this during the FTC hearing, there are two ways to contain this liability, this exposure to the non-discrimination regime. One way is to do it up front in the statute and say these are the only folks who are going to be subject to the protections. Alternatively, you do it in the back end via the evidentiary standard that a complainant would have to trigger in order to prevail. And materially impaired is likely not going to work against, say, a small tech platform. So the question was, has anybody prevailed under that standard? Yes, and of course now things are getting personal. So I should disclose that I was the complainant's expert in each of the cases, in almost every case that's been brought, but we prevailed in the Tennis Channel, the Comcast, in front of the ALJ, and we also prevailed in GSNB cable vision under that standard. That is, we got to a finding of discrimination by the FCC's ALJ. Okay, I want to make sure that we get to all the questions because I know that there are a few more. One in the front here. Yes, so last week I was at Rand Corporation's first annual Nationalist, Roberta Walshetter National Security Forum, and they were focused on disinformation. And I kept on thinking, and there weren't a lot of lawyers on the program. It was more focused on national security, the intelligence community, and the military. But I kept on thinking about the FTC endorsement guidelines and the spirit behind those, which is to let consumers know that that particular person has an interest in what it is that they're saying. And I'm wondering if anybody's been thinking about how to manage, I was thinking about consumers as consumers of information and the challenge that we have today in having an educated, based, to understand information about political brands. Because I know that the focus is on products. I get what trade means, but trade and information and products. So is anybody looking at and thinking about a concept of making sure, similar to Senator Warner's proposal that you know what the bots are, that it's a bot that's addressing you, so you can distinguish between a human and a bot. So it's about knowing who is behind the message that's selling you something and in this instance, selling you a political brand that's influencing you to make decisions. So consumer education more broadly. Well, the concept of having disclosure, like you would be required under the endorsement guidelines. No, I know it's a little bit off from anti-advance. Anyone want to take the endorsement guidelines? So I'm not sure about the FTC. Again, I just moved here from California, I've been living in my West Coast bubble for a long time, but I've been making the rounds in the last six months. And one of the stops that we've made is with the FTC. A lot of their rules around online ad disclosures and political ads are from like 2006, which is like, I don't even know that Twitter existed and Facebook was like barely a year old. And so we've been working with groups like National Hispanic Media Coalition, Asian Americans Vancing Justice, I think it's triple A, J, C, and other folks earlier this year around political ad disclosures. And so that's, I'm not sure folks in the audience may be able to say better around where they fully landed on that, but I think that particularly is gonna blow up even more as we're already starting to see reports of a lot of voter suppression efforts happening. So I think after the election, it may get reactivated as well. Any other questions in the audience? Did you have a question, sir? Yeah. Claude March with Em Larch. Hal Singer, you had mentioned at the beginning some very eloquent remarks about the hate speech and regulating that. Talk for a second about how you might propose the FTC or so doing that without obviously striking a balance between regulating hate speech, but also keeping First Amendment rights. How do you balance those two? Yeah. I'm not a lawyer, but my understanding is that given that it's a private platform, that the private platform wants to strike someone's content, not from the platform that the First Amendment wouldn't even apply. But does anybody else have any questions on there? You're playing a lawyer pretty well, I think. I think that's the brightest man in the law. Yeah. Last week, we just released in a coalition of 40 civil rights group a project or campaign called changetheterms.org, which talks about dealing with violent speech across different platforms. We expressly say that we're not talking about ISPs because of some of the pieces around that neutrality and want to preserve speech, but I think there are different pieces around where that line is in terms of whether or not people can say whatever they want to online versus actively organizing around this idea of holocaustinol and leading people towards radicalization in the ways that we've seen this past week. Sir. Hi, thanks. My name is Jack Kropansky, unaffiliated. Speaking of independence, what about the states in Europe in terms of regulation and I guess, if you call it preemption, in other words, the degree to which the federal government can say you can't do things like with the FCC and net neutrality, or is there possibility or prospects for like California and New York to do a lot more intensive regulation if the federal government doesn't. How do you want to take that? Yeah, I think the California referendum on privacy seemed to me provided a template for how to get around the blockade that exists at the federal level, I don't think there would be great prospects for privacy legislation absent of that victory that happened in California. And so to me, I kind of got excited that that might become a new template for how you would eventually barge into a federal solution to a problem. Seems like Facebook and the other platforms were newly willing to strike a deal to relieve themselves of the obligations at the state level. And I thought that was gonna play out with net neutrality, but Brian says that the state has decided not to enforce its net neutrality laws, pending resolution of other cases, so. I'm kind of grateful that we're able to pivot a little bit to Europe because there has been sort of an undercurrent of discussion about Europe in the hearings that we haven't really touched on today. And I'm kind of, maybe I can highlight an example, the recent Android decision in Europe. And whether or not, or I guess I'd love to hear your take on how Google's solution to that, their remedy is gonna play out. Their decision to not offer the Google Play store in a bundled manner with its other apps and instead license them sort of individually. What kind of downstream effects could we see coming out of that? So I think, I don't know that I mean that's sort of speculative, right? I mean, I just think we need to wait and see. This is sort of, essentially there's the crux of the disagreement between European antitrust enforcers and American antitrust enforcers. What I would say is I'm fairly confident that even if Europe made the wrong decision, the world's not gonna end in Europe. Google's not gonna go bankrupt in Europe. And I don't think that this represents, I mean, I just don't see this as what Europe has done as being outside the box in any significant way. And maybe American antitrust enforcement needs to be a little more willing to take some risks to protect competition. Michael, I just, if I could drill down on that a little bit more. What would be some of the conditions by which we would judge that decision to having to essentially having been the wrong one? What sort of, what would need to happen for us to conclude, oh, this was not the right move? I think I'm a little better at what would be the right move. Like, let's say as a result of this, you see sort of a development of a competing Android platform that is successful in the marketplace, right? I guess the proliferation of independent apps that were previously squeezed out of the Android ecosystem. I think that would be evidence that it's working. Now that Google's defenders would tell you to, this is bad by evidence of the fact that we see some decline in innovation by Google in the core of the platform. I don't know how they would define that, but I'm sure that that's an argument that they would be peddling. Right, and then I guess the reverse is, I mean, you look at what Google says, what they think is gonna happen is if we allow multiple versions of Android, people are gonna be confused and there'll be less overall innovation, right? So I mean, that's sort of what we wait and see. Well, I think we're about out of time, so I just wanna make sure that everyone has had a chance to ask a question who wants to ask a question. Okay, great, well thank you all for coming and thank you to our panelists for an excellent conversation. Thank you.