 And Chris Calabrese, at the very end of that last panel, did a really good job of bringing those four somewhat disparate sounding stories into more of a cohesive vision of what's going on. And I just want to do that a little bit about the last two panels together. What we heard with the second panel and the third panel, these were two reports from the field. The first panel, the one about books and journalism and music, that was a story about the increasing manipulation and extraction of wealth in industries by platform monopolists. In the second panel, we heard how these same platform monopolists and a few other companies are also increasingly discriminating, both as Jeff made clear among protected classes, but also increasingly among individual people. As Chris said in the last thing, this sounds like it's a very wide terrain of information. But if we add it all up, there's actually a kind of a simple picture that starts to emerge, which is that what we see here is network monopoly, kind of like railroads, combined with masses of data. The network monopolist knows just about everything it needs to know about everyone who rides its rails, all the suppliers, all the producers. And the network monopolist knows everything it really needs to know about all the people who receive product, all the buyers, all the customers. And third, the network monopolist has a license to discriminate. Because of changes in antitrust law generation and go, unlike the railroads, which had to provide the same service at the same price to everybody, today network monopolists can provide different service to different people, different information to different people, different prices to different people. And it's more or less accepted. It's more or less seen to be legal. This is clearly already affecting the flow of information and ideas and art through our society. This is clearly this power and the way this power is being used is clearly already affecting the structure of our economy and our society in ways that are leading, I would argue, to the atomization of society, to the atomization of the public. At the end of the last panel, Lisa put out this question which was, can the privacy people and the competition people come together to deal with what seems to be a pretty large problem? And I'll add to that this question of, can American regulators and European regulators come together to deal with this seemingly very large problem? And this next panel, what we have is a really terrific set of speakers who are going to address this. And the person who's going to lead them at that discussion is my friend, Teddy Downey, who is the founder and publisher and executive editor of Capital Form. And they are the co-sponsors of today's event. And they're also sponsoring another event tomorrow morning, which is related to this. And you could read about that online. But Teddy is somebody who I've worked with very closely for the past six years. And so I'm going to turn it over to him right now. But he's a close friend, and he's a great ally. Thanks so much, Barry. And I do really quickly want to reiterate that we have a panel on monopoly, a second day of this antitrust conference at the National Press Club tomorrow, starting at 8.30. We have several panels as well. So I just wanted to reiterate that quickly. This panel, open and democratic, anti-monopoly in the 21st century. We're going to talk about several themes. I just want to quickly introduce our speakers. Tim Wu, he's currently a special advisor in senior enforcement counsel for New York AG. Eric Schneiderman. He's known as the father of net neutrality. Tim has written extensively on issues relating to the internet and digital media, and was a senior advisor to the FTC during the first Obama administration. Gary Rebeck is a partner at Car and Feral and is generally credited with spearheading the efforts that led to US government's successful lawsuit against Microsoft. As Wired Magazine wrote of Gary, if there is one person who is going to help define antitrust law for the 21st century, it's Gary Rebeck. Jonathan Cantor is an antitrust partner at CAB Walleter, where he co-heads the firm's global technology industry team prior to joining CAB Walleter. Jonathan worked at the FTC's Bureau of Competition. And Christian Ducuna is a policy assistant at the Office of European Data Protection Supervisor, where he leads EDPS's work on the links between data protection, consumer protection, and competition law in the digital economy. And with that, I'd like to turn things over to Tim. Sure. Great. Sorry, I didn't chance print my notes out. Great event. Thank you for inviting me. Thanks to New America, again, for doing something terrific and groundbreaking. And of course, thanks to Senator Warren. I think her remarks were very powerful. And so I'm just glad this event is going on, a great collection of people. I have seven minutes here. And I guess I just want to talk about one thing. The question that was somewhat posed at the end of the last panel is, what do people need to be thinking about in the next couple of years? And I'm going to talk about something slightly different than antitrust, although closely related. I'll call it the Alternatives to Antitrust, or what are sometimes known as competition catalysts. And I'll explain a little more what that means in the time that comes. But I think this is going to become a big question over the next decade. Many people have spoken here. They feel that, in some ways, antitrust has been challenged. Could be it's hard to enforce it because of the case law. And one of the questions I want to explore, and I think that will become an increasing importance, is whether the use of regulatory tools that share the goals of antitrust, but are a different means, either not case law or enforcement driven, but are rather rulemaking driven, will start to play a really important role over the next decade and what that would look like. So I'll take a couple of premises. I think they're pretty clearly stated in Senator Warren's speech. And by many of the speakers here, the economy is increasingly concentrated in the high tech sector, which I've spent some of my career thinking about. Many of the platforms have sort of unexpectedly, I'd say, proven to be winner take all. There was a sense at one point in our history that there was something natural about the internet that just meant every five years the big company to be gone, someone new would show up. But people are sort of drumming their fingers and said, well, what happened to that? There seemed to be more bearish dentury. And this is not only a high tech thing. I think across the economy, there is a sense in many industries, like many of them were described from airlines through, you name it, that there's a sense of concentration and that antitrust enforcement, and I think I've worked at several antitrust enforcement agencies that antitrust enforcement without, oh, let me say the thing you're supposed to say, which is personal comments and not to be attributed to any other bonding other than this person right here, that in some ways, antitrust enforcement has not been successful in fighting the concentration we've seen for one reason or another without maligning anyone's efforts. It just hasn't happened. I think it's a natural question if plan A isn't working. What does plan B look like? What are the alternatives to antitrust? And what I think will be really important over the next 10 years is developing a conversation around what the main alternatives to antitrust look like and when they're effective and when they're not. So just to speak briefly about the history, it's often said we face similar challenges to those we faced 100 years ago when the economy was similarly concentrated. At that point, there was sort of a bifurcation two approaches taken. One was intensive antitrust enforcement, like standard oil, break them up to 11 pieces. The other approach was the regulated industry approach, which said, you just assume it's going to be a monopoly and try to make them be a good one. AT&T, around the same period as standard oil, lived under that approach for 70 years or so. I think what's emerging, mostly in telecom regulation, though it has potential to spread to other sectors, is this idea of trying to achieve those goals of antitrust, but not using the regulated industry paradigm but using regulatory tools, exactly. So as I said, the regulated industry paradigm was focused mainly on price control. It assumed monopoly, it really had no place, sometimes banned competition with the incumbent. And I think in some sectors that may be still important, electricity maybe, or others, but I think that we have a little more faith in competition than we did 100 years ago to be of some used to consumers. And the conversation, I don't want to spend forever on this. So the conversation I think that needs to happen is we need to develop a better understanding of the main tools you would use to achieve these goals. I'll give you four examples of them. One of them is what is called a tiebreaker. This is a regulatory situation where you take note of a market that's adjacent to a monopoly market and has long been foreclosed for various reasons and you break it open. A good example of this was the telephone in the AT&T era where AT&T had made it impossible to buy anyone, but they're telephones. They're broken open by the FCC using cardiff phone rules. Right now, the FCC is trying to do the same thing with cable boxes, where there has been limited or no competition for a long time. So you just find something to try and break the tie. Switching cost reducers or another regulatory tool, here's a situation where you try and make it easier for people to switch from one competitor to another. One of the reasons sometimes people don't leave a company is it just that hassle, that problem. So an example in the telecom context is number portability rules, where you get to take your number. So you might not want to leave Sprint, Verizon, or whatever. If you can't take your number, you take your number, it's easier, reduces the cost. The question is whether that model can be used in other industries that are suffering from competition problems and what that would look like. Equalizers are regulatory measures that seek to reduce the competitive advantages or the barriered entry from either from scale or control of a distribution network or some kind of essential resource. Net neutrality, which hasn't been mentioned yet, I think, too much, is an example of that. One of the ideas behind net neutrality is that, in theory, it allows smaller competitor to have many of the distributional advantages of a larger competitor, so that a startup can compete. If not 100% equally, they have a fighting chance against a much larger competitor. And a final thing that I think we need to think about, just two minutes long, are when the government can successfully inject information into a market or into an industry. Often, the information is not adequate and be a reliable trusted source of information that makes it easier to compete one way or another. There's a lot to this. Seven minutes is a short time to try and summarize it, but I want to suggest this is the direction. And let me close by saying this doesn't mean, and I don't want to take away from the idea or the thrust of this idea that antitrust enforcement is crucially important. I just think we need to be firing on all cylinders or every battery or whatever you want to say, both the main guns and the secondary guns, and that's what I think is important and one of the things that will be important in the next 10 years. Thank you very much. Next up, we have Gary Rebeck. Thank you. I think they're passing out my slides. There's very little time. I have a lot of material in the slides and I'm just gonna zip through it. So I'll talk about several of the pages and if you just want to follow me through the material. I'm supposed to be talking about lessons from the Microsoft case. Now I didn't come here all the way from Silicon Valley to talk to you about things that happened in 1998. The reason we're talking about this is that this is the most relevant and probative antitrust precedent that there is for the kinds of issues, platform monopolies that we're talking about here. I have clients in both of the Google investigations in Europe, the precedent is the Microsoft case. If God willing, there's a case here in the United States, the precedent will be the Microsoft case. So that's why we're talking about it here. Now, let me just give you a little context. I'm on page two of my slides about what it was like back in 1998 to get that case filed and you can decide how similar it is to what's going on today. You know, there was a democratic administration but frankly that democratic administration was a disappointment on antitrust. And the atmosphere, the Gestalt was controlled basically by conservative thought. And you heard the Senator talk today about Robert Bork but I think it was really Frank Easterbrook. As some of you know, a leading judge on the seventh circuit for a long time, the chief judge, very bright guy. But so far as I can tell, no experience with entrepreneurs, no real business experience other than a brief attachment to lexicon, no experience with venture capital, no experience with high growth industries. And nevertheless, he felt empowered to tell you all about how business works and therefore how antitrust ought to work. And it was breathtaking in its simplicity because it cited no economics, no data, no studies of any kind but you can see some of Easterbrook's homilies on the slide and you've heard about some of them today. You know, monopoly self-destructive, we don't have to worry about it. Only good business practices will survive and the market will take care of that. The losers in a competitive struggle are losers, pure and simple, don't worry about them. Federal judges are morons, they can't handle antitrust cases and therefore antitrust enforcement is more likely to retard innovation and do harm than not doing anything and therefore my counsel, if I'm Mr. Easterbrook to you, is do nothing. And the conservatives said, huzzah, huzzah, huzzah. And what did the progressives say? Well, if you see there on the slide, there isn't anything because the progressives didn't say anything. Now starting in 1986, there was this huge body of economic literature about network effects, Shapiro and cats, Soloner and Farrell and so forth. There was plenty to rely on and if you heard the first panel today, there's a ton of material to rely on but for decades progressive voices have been absent in this space. In fact, the speech today, I think was the first speech I've ever heard by a national progressive political figure just on antitrust. Okay, I'm on slide three. So after much agitation, challenging the government and court, doing a whole bunch of things to create publicity around this, you finally get a complaint against Microsoft. 1998, there's a trial and it's held in two rounds and then there's a decision by the district judge that comes in two parts, 1999 and 2000. And the interesting thing about the decision is it undoes all of these Easterbrook homilies. You know, the judge didn't feel he was a moron and couldn't do a cost benefit analysis. He just did one. He didn't feel like monopolies were self-destructive. He saw a durable monopoly that wasn't gonna go away unless he did something about it and so forth and he'd go down each of them. Now the judge was Thomas Penfield Jackson. He was a die-hard conservative Republican. His personal hero was Barry Goldwater. How in the world did he come to these decisions and the answer is he looked at the facts. He did what judges do. He looked at the facts, made decisions and applied the law to the facts. Okay, goes up to the court of appeals. The court of appeals affirms for all relevant purposes. Now what's interesting about that opinion is that the chief judge at this time is Harry Edwards, a liberal Democrat. Doug Ginsburg is on this court as well. He's a conservative Republican, as you know. Every word of that decision was negotiated and the court published a percurium decision, no dissents. Words to live by, words that Republicans and Democrats and progressives and conservatives and everybody can agree upon that was the Microsoft decision. Eventually before I go on, I should say a word about Trinko. The only word I can say about it that I like is it didn't overrule Microsoft and so that's wonderful. It does quote Microsoft approvingly in some of the language and the issue in Trinko is not really the issue in Microsoft so happily that got saved. Okay, what is it that Microsoft did on page four? Well, as you know, there was an operating system and there was a new technology called a browser and the browser was both a complement to the operating system and it was a partial substitute. And so Microsoft did two basic things. One is anti-competitive licenses. It said you couldn't, if you were an equipment manufacturer you couldn't get windows unless you also took the browser and you had to keep the browser prominently on your front screen and you couldn't remove it. Now if you're thinking gee, that sounds familiar, that sounds like the EU's case against Google for Android, GU'd be right and so you're probably thinking, well it makes a lot of sense you'd sue over that since there's the precedent and you might ask where's our FTC, I don't know. Okay, the other thing that Microsoft did, the other thing that Microsoft did is preferencing. They gave their own browser a preference over other browsers. Now if you were a user you could download somebody else's browser and install it, no problem, just the same way you can click to find somebody else's website if you want, but the court said that's not really enough. No, I got three minutes, thank you. That's not really enough. You can exclude the most cost-efficient mechanisms of distribution and so if you were thinking, well that preference sounds a whole lot like search manipulation, the case that the EU brought against Google, well you're right. It's exactly the same thing, same precedent, same drill. Okay, what did we learn from Microsoft? Well if you turn to page five we might ask what Microsoft first learned? Microsoft it seems is the only party that learned anything from the case because for a decade up until recent years Microsoft controlled 98, 97% of the browser market. The only way you could get to Google was type, dot, dot, dot, google.com. Microsoft didn't have to take you there, technically they could take you to their site. They could say access denied. They could if you think that's draconian put up a big warning screen like you see on the slide that says this is a bad site, it will take your personal data without telling you and it will track you all over the internet, be truthful even, but Microsoft didn't do any of those things. Why not? Because they were already being fined billions of euros by the EU and because there was already a case that had been aired publicly about their behavior so they didn't do it. They could have killed Google in the cradle but they didn't. What did Google learn? Go to the next slide please. Google learned there's no point in arguing with the government, you can just buy the government. That's a good lesson to learn. Okay, what did our own government learn? You recall that the government did an investigation of Google for these things and then just dismissed it and that produced skepticism in all quarters. I show you the New York Times article then there's the Wall Street Journal article. Last year as you know the Wall Street Journal published the odd number pages from the report including the footnotes. You can see what Google's own documents said they were doing on page nine. They were demoting rivals, they even made a list of rivals and denied them and demoted them on page 10. You can see that they preference their own stuff even if it wasn't any good. On page 11 you can see what the FTC staff said about that, exclusionary conduct, anti-competitive effects and yet they did nothing. Why is that? Because in the last section they said courts would be unwilling to do something about it. What did they cite for that extraordinary proposition? They cited the Microsoft case. How could that be? What were they thinking? I don't know, anyway there you have it. Okay, what should the government have learned? Page 13, this is important and I'm gonna take just a couple of minutes on the last two slides because people asked in the earlier panel can you show harm from no antitrust enforcement? Let me show you what's happened over history that I think most of you don't know. So in the waning days of the Johnson administration the antitrust division brought a case against IBM. That case, as conservatives will tell you was subsequently dismissed by the Reagan administration. That's true, but IBM in order to avoid further charges unbundled its software from its hardware. Prior to that time nobody went into the software business because there was nothing to sell because IBM software came free with the hardware. That's the beginning of our software industry. There wouldn't be an American software industry without antitrust enforcement unless you think I'm exaggerating, in 2002 the managers and executives of IBM did a retrospective in the IEEE annals and they talk all about this and you can find it online. So no antitrust enforcement, no software industry. You heard a little bit about the breakup of AT&T. I decided the IEEE annals, another great authority here is oddly enough Vanity Fair which did a study of the history of the internet a few years ago and it talked about how AT&T suppressed the internet protocols. But of course once they were broken up they couldn't suppress much of anything anymore and competitors put fiber in the ground and that's where the internet comes from. No antitrust enforcement, no internet. I've already shown you Microsoft, no antitrust enforcement, no web 2.0. That's no Google, no Facebook. None of the things that you use every day, all those things come from antitrust enforcement. So bottom line, what does antitrust enforcement get us? It gets us opportunities for American innovation. It gets us American economic growth. It gets us more American jobs and it gets us more wealth for American investors. That's what antitrust enforcement does. Thanks. Next up we have Jonathan Cantor. Thank you, I took Gary's slides just so I can just read them. No, that was terrific. When I first sat down I thought I was gonna make a joke about how much I enjoyed Tim's talk but I would enjoy it a lot more if he gave it on a roller coaster which some of you might have seen Tim on the Colbert Report where he, not the report, late night where Tim explained that neutrality on a roller coaster with Tim Colbert. And then I heard Gary and realized that we had the roller coaster because Gary's talk was as exciting if not more than any roller coaster we could ride. So those are both tough acts to follow. I'll do my very best and try to be brief in the process. So part of this discussion is looking forward to the 21st century and where do we go from here? We talked about a lot of important things. I think there's a broad consensus on the need for change. There's a broad consensus that the challenges we face with today's markets are interesting, unique and in many respects require an updated view of the world relative to where we were. So we're at a fork in the road. So what happens now? Well, two possibilities. One is we can continue on the same path, path that was really carved out in the 1970s and 80s with Chicago School which led to a reduction in antitrust enforcement, a narrowing of the frame through which we view the enforcement of the antitrust laws, a focus on neoclassical theories and economics and as previous panel discussed, models and showing what we can prove and probably ignoring everything we can't. Alternatively, I think we are at an inflection point where we're going to see a fundamental shift in terms of how we approach antitrust enforcement in this country. And this is gonna be from the result of a number of different factors. But what we've had is we've had this string of consolidation that folks have noted and we have people noticing, right? You heard Senator Warren earlier, there's no better example of that and then executive order from the White House making the same observation. People are noticing substantial amounts of consolidation, more industries that are consolidated and they're seeing a greater divergence in the haves and the have-nots and they're trying to ask, is there a role for antitrust to play? I think where we're getting is the answer is yes and not only is there a role for it to play but there's a need for it to play a greater role. So what are some of the other signals that we are at this inflection point and this is where we're gonna go? Well, a couple of things. One, antitrust is one of those interesting areas that's not really that partisan. Just go back to the most recent antitrust oversight hearing. We heard very strong statements from Senators Lee, Senators Hatch, the Republican side, Senators Blumenthal and Senators Franken on the Democrat side. It's hard to get those names agreeing on issues but they were, they were agreeing on the need for more antitrust enforcement and they were agreeing on the need for stronger antitrust enforcement particularly in the tech space. What else did we see? We've seen greater focus on consolidation. During that same hearing, Senator Blumenthal said, looked at the antitrust enforcers and said, this country's merger policy has failed and very direct and that's the sentiment that many folks have. We see a growing chasm with Europe. For a long time it was understood that the United States was the leader intellectually from policy perspective in terms of antitrust. Now more people look to Europe especially U.S. companies who need antitrust enforcement because they don't see the possibility to get what they're looking for here in the United States. They don't see the kind of thought leadership coming out of the United States and said they see the doubling down of principles that really go back 30, 40 years. We see the White House, the White House talking about antitrust issuing an executive order and report. That's not something that happens every day. We see powerful consumer champions and senators like Senator Warren standing before folks here today talking about antitrust in a keynote address. That is extremely significant. I should note that I think I even recall and this is by no means an endorsement, Donald Trump mentioning antitrust in a speech as part of his plan to make America great again where he talked about antitrust enforcement. So there really is a consensus here. The last thing I'll mention in terms and then talk about where I see the real changes taking place has been about this kind of potent cocktail of consolidation and concentration coupled with the lack of monopolization enforcement. So on one hand, we see more industries with players that have large market share than ever. On the other hand, we see less and less oversight over the players in terms of how they use that market share and that's a very significant recipe for more enforcement. So where are we likely to see more enforcement? A lot of the focus today, at least earlier, has been on mergers and blocking mergers and keeping that consolidation from happening. I'll defer to those other panels on that. Obviously that's going to be an important place. Merger guidelines, understanding them better is going to be or coming up with a new framework to analyze mergers and understand concentration is important. Where I want to focus is a little bit on the conduct side. So one is monopolization, section two of the Sherman Act, section five of the FTC Act. The antitrust laws were created, not really to deal with mergers, they were created to deal with dominant companies, monopolies that own platforms and gateways. And it was designed to make sure that we allowed the free market to work. We allowed the free market to work by unclogging, clogs on competition and letting the entrepreneurial spirit of this country take place. Senator Warren said, we like markets, we like free markets, we like open markets, we like competitive markets. The antitrust laws really ultimately exist to let that happen. And what we've seen over the last 15, 20 years is not just a slow or steady decline of unilateral conduct enforcement or monopolization enforcement, we've seen pretty much the death. I mean, name a big, as Gary pointed out, section two or monopolization enforcement case that's been brought since the Microsoft case of the 90s. Nobody can think of one because there hasn't been any. And that's part of the problem is if you're not bringing cases, the laws, its muscles aren't being exercised, the case laws aren't being created and certain assumptions go into place that, well, it's just not necessary. And so if you look at the area that is probably the greatest need of attention and where we can see the most impact quickly, it's in bringing real section two enforcement cases. Second is the revival of section five as an insipiancy statute. A lot of conduct really could be addressed before companies squish out competition and take over market. So think about this. Let's say someone comes to my house and they say, oh, can I come in? I'm here to install a light fixture. I let them in. They install the light fixture and then they take out a big bag and says, this is my bag for stolen stuff. They put on a ski mask and they start robbing my house. So I call the police and I say, hey, this person here came in to install my light fixture and now he's stealing my stuff. Did he steal all your stuff? No. Did he leave the house with your stuff yet? No, it hasn't left the house yet. Okay, call us when he's left the house with all your stuff. Call us when you have no other stuff left. I call them while he's on his way out. He's got two bags now. Okay, do you have any money left? Well, yeah, I've got money left. So you can go buy new stuff if you really want to. I guess, but the guy's taking my stuff when he's leaving the house. Okay, give us a call after he's left the house and after you spend all your money and you're out on the street and then we can go ahead and deal with your problem. It's obviously an exaggeration but that's the kind of world we're living in right now where the bar for proving a section two case is so high that you literally have to show that there's nothing left that foreclosure is complete, that the effects are so easy to demonstrate that there can't be any risk of a false positive. The other point I might add is you call and say, okay, now he's left. I've got no more money left. Can you please come now? It's like, well, did he install the light fixture? Yeah, he installed the light fixture. Well, that's a product improvement. And technically if it's a product improvement, that means there's nothing else I can do. So that's the situation. I think just building on that in the last minute or two, I want to focus a couple other areas where I think you're likely to see more attention is on non-price effects. I think that's been something that's clearly come up in today's discussion. I want to read an excerpt from a 1979 paper by former chairman Robert Petosky, which talks about politics and antitrust and the importance of taking a broad look at antitrust enforcement. And it's really as applicable today as it was back then. And I'll start the quote from former chairman Petosky, which is, it is bad history, bad policy, and bad law to exclude certain political values by interpreting the antitrust laws. By political values, I mean first, a fear that excessive concentration of economic power will breed anti-democratic political pressures, and second, a desire to enhance individual and business freedom by reducing the range within which private discretion by a few in the economic sphere controls the welfare of all. A third and overriding political concern is that if the free market sector of the economy is allowed to develop under antitrust rules that are blind to all but economic concerns, the likely result will be an economy so dominated by a few corporate giants that will be impossible for the state not to play a more intrusive role in economic affairs. Sadly, that's the direction we're heading in, which is that we need to take a broader view, we need to understand the impact on speech, on free expression, on look at the state of our creative arts, look at the state of journalism. And these are the things that need to be thought about and thought through, look at the state of corporate power in Washington. In my last minute, a couple of other things, which is the need to start thinking more broadly about harmonizing regulatory oversight and antitrust enforcement. We see, for example, convergence at the FCC in terms of telecom and cable, but what about those edge services that are outside the scope of the FCC's authority? How are we gonna make sure that we have a coherent approach to the two of them? The need for thinking not only about privacy in the context of antitrust, which is gonna be important, but also, frankly, the need to have some baseline requirements for how companies can act in terms of protecting user privacy with respect to some baseline legislation. And lastly is, and I think this is extremely important, it goes back to some powerful work that Professor Wu did, but is really thinking more about understanding the behavior of users, right? This notion that simply because another store is next door means that I can step out of the store and go in, there are no switching costs. In our online world, it's very different. It's not as simple as stepping out of a store and walking to the next one. There's a greater ability to manipulate the individual behavior of a user, and there's a great ability to manipulate the behavior of that user right up into the point until that user would be likely to switch, and it's not on a very personal level. So we'll need to start thinking about these things in a more sophisticated way, and then thinking about antitrust law with that in mind. Thank you very much. Next up, we have Christian Dukuna. Okay, so I'm starting my stopwatch now, so hopefully I won't outstay my welcome. Thank you very much to Barry and New America for the invitation to be here. It's an honor to be among such esteemed speakers, but it's also a relief, as Lisa said earlier, for us Brits, this is like therapy for post-traumatic Brexit disorder. I wanted to make three propositions and end with a call to action. I'll try to tie together some threads as speaking as the last speaker, which I consider apply to the EU, but should also resonate for the US experience. First proposition is antitrust and privacy rules have common goals, but enforcers don't always act like they do. Secondly, the digital turn in the economy in society is threatening individual rights as well as competitiveness. Thirdly, these enforcers need to put aside institutional reticence and start working in tandem urgently. First of all, some context. Lives are moving online, multitasking millennials somehow managed to spend 18 hours a day consuming media, mainly online. These media which are supplied, usually in exchange for ubiquitous and largely covert tracking of behavior. The OECD has found that big data mergers and acquisitions traveled between 2008 and 2012. And now mainstream outlets, as Barry opened the discussion this morning, has said the economist has started to highlight the damage to choice competition, but also privacy of dominant companies buying small potential competitors. There's also a lack of trust and a sense of lack of control according to surveys of consumers of digital services, both in Europe and in the US. And some even say that individuals and companies the way they interact online is actually a new paradigm altogether that it's quite separate from the way traditional markets have worked. So for us, the big public policy questions are who reaps the big data dividend? Is it a handful of entrepreneurs or is it society in general? And if it's the latter, how do authorities with similar goals safeguard the interests of the individual? So the first proposition, antitrust and privacy rules have common goals. US and European legal traditions share a philosophical underpinning for privacy and antitrust. Louis Brandeis, already mentioned, wrote a similar article on privacy in 1899 on the right to be left alone before he pioneered competition enforcement. And there is a notion in both traditions of fairness and of choice and of the need to address power imbalances. And as a data protection and privacy regulation, our concern is not so much market power as the behavior of companies and the impact of that behavior on individuals. In fact, it was former commissioner Pamela Jones-Harbour who raised concerns of mergers which would have an impact on privacy with her dissenting opinion in the 2007 Google and DoubleClick case. And it was against this background that the EDPS in its capacity as independent advisor to the European Union launched a debate in 2014 on the links between privacy, competition and consumer law. Second proposition, the digital turning the economy in society is threatening individual rights as well as competitiveness. In the EU, the Charter of Fundamental Rights is on a par with the US Constitution. You can't just change it by passing a law. Some of the rights at stake include the right to privacy, which is Article 7, the right to personal data protection, which is Article 8, which is distinct, although it's related to the right to privacy, the right to freedom of expression, which includes the right to receive and to impart information and the freedom and plurality of the media. And it includes the right to non-discrimination, Article 21. These rights are not there to put a break on economic growth or technological innovation, but they should steer the direction of this evolution. The European Union's new General Data Protection Regulation will apply to any company targeting people in the EU with goods and services, and it's the baseline for lawful data processing. But it doesn't provide the conditions for avoiding externalities like harm to privacy and freedom of expression. There are over 50 instances of data collection which are invisible to the user when he or she accesses a single website. These services, this monitoring is in order to predict and change the behavior of users online. And the irony is that on the one hand, transparency is required of online users in contrast to the opaqueness of what providers are actually doing with that data. And the algorithms, as has been mentioned before, the algorithms and how they work and how they determine how individuals are categorized, what appears on my news feed, et cetera. So this is more than data protection. It's about being typecast. Young male drivers, for example, being required to have black boxes in their cars in order to get car insurance. It's being locked into echo chambers, as I think it was Michael who highlighted in the previous panel. If my Facebook feed had been representative about 95% of the UK would have voted to stay in the EU. And from a rights perspective, it's not about whether you see targeted ads or not. It's about being constantly watched. In fact, the ad blocker wars which are raging at the moment can be seen as the failure, the result of the failure to set an industry-led standard for do not track. And that's why Tim Berners-Lee and his team at the MIT are looking at how individuals can take control of information about them instead of being consigned to walled gardens and filter bubbles. So thirdly, these enforcers need to start working in tandem urgently. The EU is seeking to respond to the platform challenge in several ways. Effective regulation and enforcement, yes, but this is only one piece of the puzzle. It sets the framework for secondly, technology-driven solutions, the accountability for those who process information and fourthly, user empowerment, for example, through the portability of content and data. It's necessary in a democratic society for the regulator to intervene, to ensure that the monopolist where one exists provides a diverse offering and does not obstruct competition or damage consumer interests. And just this year, we've had calls from the UN Special Rapporteur on Freedom of Expression, the European Conference of Data Protection Authorities, the UK House of Lords, the joint study which Lisa mentioned from the French and German Competition Authorities and in March, the German Competition Authority launched an investigation into Facebook for alleged abuse of exploitation through their use of customer data. And the EU is now discussing how to update the rules on safeguarding privacy and electronic communications and this is quite distinct from the rules on data protection. But we in the EDPS are calling on the EU to go further. We think that monopolies which prevent entrance into the market which aim to empower the user to avoid being tracked. We think that may well be an antitrust issue as well as a privacy issue. These dominant undertakings should be setting an example. So just briefly, the overlap between data protection and competition in specific terms, four things. First of all, where the exploitation of a customer by dominant undertaking, where there is an unfair data use policy which is imposed by that dominant undertaking, that's an overlap. Overlap too, where merger proposal could lead to a denigration in the quality of the product in terms of the amount of tracking and the interference with the individual and stifling of their freedom of expression and Maurice is the global expert on this. Thirdly, merger control where the threshold could be the concentration of personal data not just annual revenue of the two parties concerned. And fourthly and more deeply, the purpose of competition law is ultimately political. In the US it originated as a means of disrupting monopoly power. In the EU, competition rules are subservient to the goal of establishing an internal market. And we think that gives us a hook for regulating in favor of individuals not merely abstractions such as consumer welfare. So we're dealing with different areas of law with separate bodies jealous of their field of competence and budgets in these straightened financial times and we think they've got a lot to learn together. So finally, what are we doing? We are shortly going to publish a paper with some recommendations to the EU on more coherent enforcement in digital markets and society. And we're hosting with the Federation of European Consumer Organizations a conference on big data rights and enforcement on the 29th of September in Brussels. We're delighted that the Federal Trade Commission Commissioner Terrell McSweeney and the European Competition Commissioner Margot Vestia will be keynoting at the event. We also want to launch a mechanism for different authorities to talk to each other and we hope to get that started in September too. So have a look at our website if you'd like more details and it would be great if you wanted to get involved. Thank you very much. So we've only got a few minutes. I want to ask one question and then open it up to the audience for questions. So Europe appears to be well on its way in terms of monopoly platform enforcement with cases pending against Google and search and Android and in advertising. Looks like they're going to levy significant fines, potentially neutrality provisions. So Europe really seems to be showing some leadership on this very issue. But what is the future for the U.S.? How will the U.S. respond and how should the U... Oh, sorry. How should the U.S. respond? And further, what should we watch for from this administration, the end of this administration and the next administration to see if they will ignore or follow Europe's lead? I think Gary's there. Sounds like a question for me. Well, I think we should all comment on this. Can you hear me? Yeah. I'm not optimistic, honestly. I've never been optimistic about this. People ask me, I remember talking to Jonathan about what the most important antitrust case of the last quarter century was and I believe it's Citizens United and it's Progeny. I think that put us out of the monopolization business. Now, of course, if there was a strong leader, the president or a vice president who really thought this was important, then that would change everything. How did we get the Microsoft case filed? Al Gore, who was the vice president, thought it was a good idea. So, learn what you can from that. All right. I guess I'll say so. I'll take the question as part of this event has been about the idea of an antitrust renaissance, a comeback of the antitrust law of the enforcement of the main rules of competition for 20th century. And I'm maybe a little more optimistic. I think that one of the things that stands in the way, and now I'm kind of covering ground that's been covered here before, but is to seriously be willing to take, to get away from just the safest cases that are premised on essentially price harms and price fixing. I mean, there's kind of two ways you can go about this. One is you sort of say, well, we're going to just go for it and ignore neoclassical economics altogether. And I think that approach is more challenging. What I think we need to do is push an antitrust enforcement is to be willing to contendance what people have been talking around here, non-price harms, innovation questions, and have that be the platform for a new age of antitrust enforcement. And I think, and ultimately it's all about the next president and this administration, both of them putting people who are committed to serious enforcement of the antitrust laws in their positions and having them take risks to push the law back. It's not going to happen in six months. I mean, it takes a long time for these sort of glaciers to move around, sorry to be disappointing, but I think you have to start moving the glaze here in the right direction. Yeah, I agree with Tim. I think it's not an easy thing to shift, but hopefully the discussion can start now. It doesn't need to wait for the next administration. And part of that discussion is really defining the paradigm that we should be using to approach these problems in light of the new economy, in light of these new challenges, understanding where the differences with Europe are coming from, but not necessarily just putting it in the context of Europe, really understanding what it is that we can and are capable of doing at the heart of our antitrust enforcement laws, understanding the FTC act, and then really thinking about and having a mature conversation about what to do next and hopefully that can put the next administration in position to address these problems in an appropriate fashion. That's not to say that every concern should result in a case, but it's going to be important to bring hard cases and it may be important to bring big cases in order to really encourage that shift to take place. One area in which there have been some serious anti-monopoly actions is at the FCC. And so I was curious as to why that agency seems to be showing some aggressive action and why that's not happening at the DOJ or the FTC. I guess I can speak to that. So obviously the FCC is not an antitrust enforcement agency. I think they are doing what I was talking about later. They've decided that it's very important to achieve the goals of antitrust, better competition using non-antitrust tools. So they've employed, they don't call them competition catalysts, but that's what I'm calling them. They can see the problem very clearly and they're not, shall we say, hamstrung by two decades, three decades of section two, jurisprudence and concerns. Obviously they have the Administrative Procedure Act, but they've been given the power by Congress to deal with competition issues and they have done that. So I think the path is much more straightforward. It shows you what you could do an agency when you see things clearly and if you had less difficult jurisprudence. But part one thing we should mention that's important in this sort of glacier moving era of antitrust renaissance is it's also, sometimes we blame the enforcers, blame the, they don't do this thing under that. I mean the courts are ultimately quite responsible and if you spend any time inside an enforcement agency, people don't want to bring a case that is immediately dead on arrival in Federal District Court and the Court of Appeals. So there is an equal need and there's very little tension of this to understanding what judicial appointments, justional appointees think about antitrust. Start on the Article III part of this problem because that has been something I think it gets very little attention. I don't know if, when people are trying to decide who we need in the Federal Judiciary and it was different in the earlier era. Yeah, I mean that's an incredibly important point and not to get all legal and geeky, but when the Trinko case that was mentioned earlier was decided, it created a big shadow over and I trust enforcement and there hasn't been a lot of action to really test the boundaries of that Supreme Court decision, to really figure out how far it goes because really you talk to lawyers and they all have different view as to how far it really should reach. But it's almost taken on this outsized importance because no one's been out there testing the boundaries and so part of what's gonna have to happen is really maybe to poke at things a little bit, bring some cases, see more decisions coming out of cases brought by the agencies and really it's better the agencies frankly than private enforcement, although private enforcement is great, most significant antitrust cases of our time since the inception of the antitrust laws really have come from the government. And so see really where those boundaries are and figure out if it's as daunting as people have thought it to be, but to do that it means taking more risks and not just going for the easy cases which I think is understandable, folks wanna bring cases they can win, but on the other hand if you're not bringing, if you're not losing it from time to time it probably means you're probably not bringing the right cases. I really believe, sorry to say this, I really believe these things work in law and cycles and it's clear to me that antitrust is due for a comeback. It just seems self-evident to me that given the problem of competition, given the historic goals of this statute that it is almost inevitable that it has its comeback. I'd like to, do we have any questions in the audience? We've got one right here. Do we have mics? Yes, during this conference there seemed to be an assumption that markets lead to monopolies. I was wondering about, has there been any effort to determine the effects of regulation in creating monopolies, including these low interest rates and the way they've encouraged mergers and acquisitions? You know, I'll just, if I say, I just very, I agree with the idea that regulation can be used to create market power. In fact, it's the most, one of the most difficult to dislodge forms of monopoly is that supported by the state. You think about the AT&T monopoly, they were, at times in their history, protected from competition directly by the state. If you talk about patent law, which is another creation of the state, it often creates and supports monopoly. So I think it's extremely important. And I think all I can say is that the Federal Trade Commission in fits and starts has tried to explore ways that can attack state actions. And it's just important to do that. And also be aware on the regulatory side, are you actually, are you solving a problem or creating more of a problem? It's really an important issue. And I think I'm glad you brought attention to it. One more question? Can I just, can I make a comment about that question? Back 1,000 years ago when I was in law school in administrative law, I was taught about regulatory capture. It wasn't, it's not a new concept. We've known it's a problem for a very long time, but we can't seem to get over it. In California right now, there's a criminal trial going on against the Public Utilities Commission, against PG&E, which was regulated by the Public Utilities Commission, but the regulation was such that PG&E let its pipes blow up and kill people. And even though it's completely democratic administration in California, we could not get out, we couldn't do effective regulatory oversight. We created a monopoly by statute in that case and could not regulate them. Now there's a criminal trial going on and what are they gonna do? Throw the corporation in jail? I mean no individuals are charged with anything. So I'm kind of like the flavor of your question and I would add the part of the senator's speech I liked most today was when she talked about, when we do antitrust right, we have to worry about your problem a lot less. And if we don't do antitrust right, then we get into the middle of these kinds of problems where regulation just doesn't do as good a job as it really, we would hope it would do, but it's just not institutionally set up too, so. Senator Warren mentioned a specific reform which was revising the vertical merger guidelines. To what extent can revision of the merger guidelines, horizontal and vertical influence the courts? You mentioned the courts are a problem. How important of a tool would that be if the next president used it? I'll kick that one off. I mean it's incredibly important, right? The courts look to those guidelines not as precedent, but as guidance from expert agencies and they really define as someone who has been in the agencies, the DNA of how lawyers they approach problems. And so it's almost as if they're instilled as first principles when approaching any problem. So the guidelines really, even though they're not legally binding, they have a tremendously important effect. And Senator was right. I mean it's the non-horizontal guidelines I think are from like 1984. And so assuming that folks believe as they should that vertical issues can be a problem in a merger then it would seem that I mean I was 11 years old when they created those guidelines and I'm not that young. So it's probably time to revisit those. And as folks have talked about today, the merger guidelines, although they've been updated, are still really rooted in guidelines that were created around the same time. They've just been sort of morphed. And so really thinking about vertical guidelines, thinking about new approach in light of what we've learned over the last 30 years to horizontal guidelines would have a huge impact. Just to add my two cents worth here, I do agree that it would be, I think the reason we haven't had vertical guidelines is that there is a sense that a controlling sense that vertical mergers are not harmful when in fact we now know, at least in the industries in which I work, that's totally wrong. What's it gonna take to fix that? It's gonna take a concerted effort by everybody who cares because the last time people looked at this, there was this commission that was gonna put the antitrust laws out of business, you remember that. And that barely got beaten back. So it's one thing to correctly suggest we need new vertical guidelines, but it isn't gonna happen by somebody else. If it happens, it's gonna be people like the people in this room who actually are gonna spend the time making sure they get done correctly. I just wanna thank you, it was a very interesting panel and please give them a round of applause. Thank you.