Leah Nylen
Appearances
Decoder with Nilay Patel
Tech antitrust is about to get really weird
They don't yet have, in the way that the neo-Brandeisians or the Lina Khan sort of school has now sort of developed a coherent philosophy. You haven't really seen that yet on what they're calling the new right sort of They have this dislike of big business. You heard J.D. Vance talking at the convention about how the days of Wall Street were going to be over.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Yet at the same time, they're relying on Wall Street for a lot of money and support for their party. And so I think that they haven't truly come up with a coherent philosophy yet, aside from we don't like big tech.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Gail is a very interesting individual. She worked at the FTC for 10 years. One of her last jobs while she was there was as an attorney advisor to Julie Brill, who is a Democrat. She is a Republican longtime. Her husband was a longtime chief of staff to Mike Simpson from Idaho. But she is Irish, an Irish-American. She grew up in Dublin.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
So she has a little bit of a different perspective on the world, I think. Right after she left the FTC, she actually worked for the Internet Association, which was at the time, you know, the biggest lobbyist for Google and Facebook and all of the big tech companies. And then, you know, so from there went to work in the Trump White House. Yeah.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But after leaving the Trump administration, she worked for a lot of anti-Google companies, Fox Corp and then Roku. So she's very well steeped in the anti-Google arguments and the problems that I guess sort of like mid to small tech companies have. with the tech giants. She's actually a great pick from that perspective.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
She knows the technology world and the problems that have arisen from the big tech companies. It's a question of whether they're actually going to empower her to do what they say that they want her to do.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
You have to remember that this case is not just the Justice Department. It is also 48 states. And that includes a lot of Republican attorneys general. So there have been sort of Republican side input into this entire process, both the lawsuit and now the remedy phase. If they want to make some changes to the remedy, they can in March before we go into the trial.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But they've made a pretty coherent argument in the papers so far for why they think Chrome needs to be sold, for why they think the various things that they're proposing, like Google being required to turn over some of its data to other search engines, needs to happen.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
So if they don't want the judge to move forward with what has already been proposed, they're going to need a pretty convincing legal argument for why what the Biden folks said is wrong.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
In this situation, we have Judge Mehta, who's going to be making the decision. He is a little bit more, we'll say, sort of like conservative. He's very careful. So, I mean, it's entirely possible that he's not going to, you know, agree to a current breakup or some of the bigger asks of the Biden team. But I don't really think that the Trump administration wants to water this down. You know, like,
Decoder with Nilay Patel
Tech antitrust is about to get really weird
They have long had problems with Google. It's sort of a rallying cry among, you know, conservatives that the big tech companies need to be broken up. So I think if they were to come up with like a Microsoft like settlement, it would certainly like be a disappointment to their base.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Yes, definitely. I mean, the judge in that case is a firecracker. She's pretty great, actually. She has said she's going to rule by the end of the year. And I believe it. She has moved everything along very quickly. There are people who are saying that, you know, if she finds that Google has a monopoly in those markets, she could try and move for a remedy decision by next summer.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
So we could have both of these sort of wrapped up, you know, by next summer, ready for their appeals.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
That is the ideal that any trust enforcers talk about. If there were all of these other social media platforms, if we really did have like 10,000 of them, it wouldn't matter if the government was trying to go around and get somebody banned off of Facebook. one or censor a particular view about viruses because those people could just go to the other one.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But the problem is we only have a few of them. These are the gateways to the internet. And so if the, you know, government or if the company itself makes a decision, it can have a massive impact. That's sort of the entire premise of a lot of these cases is, you know, we should have lots of competition for all these things, but we don't.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I think you definitely saw that for a long time. I mean, I think you even really saw that with the Epic Apple case, right? The judge wasn't really ready to go there and find that what Apple does violates antitrust laws, although she found that they do violate California's antitrust laws.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
You can definitely see that in Judge Mehta's opinion, right? And that was part of the reason that they went with the Google search case first, is the way that they pled that case and the way that they brought it to trial is so closely used to how they brought the Microsoft case and the Microsoft decision forward. all he had to do is be like, oh, apply Microsoft, DOJ wins.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
And so they were like laying out for him, here is the way to do it. And he took the bait. He found that Google is an illegal monopolist. Now, some of the other cases are a little bit harder. And that's part of the reason they were brought later. They were hoping that they would have a little bit more development in the law.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
And, you know, now a lot of these judges can at least look to Mehta's decision for how he applied it to Google as they're thinking about it. I don't know if that's actually going to, you know, cause them to find, for example, that Apple's a monopoly or, you know, Amazon.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But at least, you know, by the time that gets to trial in 2027 or eight or whatever it is, you know, by then Google search will be old hat.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
That is the big question. I mean, you saw immediately after Donald Trump was elected that Wall Street was thrilled. They were like, we're going to have a roaring tide of deals again. It's going to be wonderful.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
And then if you noticed, the ones that took the longest for the transition to name were the economic policy people, because there is this huge split in the Republican Party between the pro-business Wall Street type folks in the JD Vance's of the world. And in some cases, like for Treasury Secretary, the Wall Street types won.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But on the antitrust front, it was actually, you know, the JD Vance knew right folks. And, you know, so they have a lot of pressure on them. Are they really going to sort of continue with the way that the neo-Brandeisians have done things, or are they going to go back to the old way? And I don't know that anyone really knows. I mean, you mentioned the Ferguson memo. It's
Decoder with Nilay Patel
Tech antitrust is about to get really weird
It's a little bit weird in and of itself. It says that it's going to stop the Lena Kahn's war on mergers, but that we shouldn't allow the tech companies to buy anything. I'm like, well, those are sort of a little bit at odds.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Yes. I mean, they're the ones who are sitting on loads of cash. They're the only ones who really have all of this money, aside from maybe like, you know, private investment and venture capital to be spending. That's part of the argument of the neo-Brandeisians is, you know, we have concentrated not just so much capital,
Decoder with Nilay Patel
Tech antitrust is about to get really weird
power in the tech companies but so much wealth if you look back in the 1980s and 90s like you didn't have these one or two runaway companies at the top of the you know stock exchange indexes you had you know lots of big companies that could be investing but now we have like one or two trillion dollar companies and everybody else is really lagging behind
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I mean, it was funny when Bloomberg did an interview with Donald Trump and they had mentioned that they wanted in any trust questions. They came to me and they were like, what should we ask Donald Trump? And I was like, well, ask him about the Google breakup. And what did he say when they asked him about the Google breakup? I don't know if we should break up Google. I was like, you know...
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I was like, I don't think you're actually going to get a coherent answer out of him on antitrust policy because he doesn't really concern himself with the intricacies of particular policies. Someone once described to me his philosophy is like he finds someone he trusts on a particular issue and he sort of delegates it to him. And that is true to an extent.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
He like delegates it until he like wants to stop delegating it. That's, I think, the conundrum of all Donald Trump policies is antitrust.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
And like, you know, for advisors or people in the government is like they can do their job and like do what they think is, you know, the best, you know, for a while until he sort of gets interested in an issue and then sort of he's going to try and take it over and they sort of have to do what he says. Yeah.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I think it's still going to be a little bit of that. I mean, they obviously don't want Google to get bigger. They don't want Facebook to get bigger. Maybe they probably would have less problems with Amazon getting bigger. I can't really see the Trump administration having had problems with the iRobot deal, for example.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I mean, that was a little bit of a novel theory that, you know, Lena Kahn's folks were pursuing. So I think that kind of dealmaking, particularly vertical type dealmaking, if you can make the argument that this is something that the tech giants are not doing, it's moving into another area of the economy. Yeah, maybe that's what we'll see happening.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But there are certainly lots of people who have started talking about dealmaking again.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I mean, that's true. We've seen from Kroger Albertsons. I mean, it's not like they're small companies. They are the number one and the number two grocers in the U.S., but This argument that like the smaller guys should combine so that they can better compete against the big guys isn't particularly popular among the antitrust set.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
But then again, you know, this is going to be a sort of more Republican antitrust set. They have said that they want to bring dealmaking back. So we'll see how it goes.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
There are some threads that make sense, right? Republicans, particularly the libertarian strain of Republicans, are very opposed to big government because they say the government can get so big and it can force you to do things and impinge on freedom. Andrew Ferguson was giving some really interesting remarks about the problem with consolidation. Tell people who Andrew Ferguson is.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Andrew Ferguson is a Republican commissioner on the Federal Trade Commission. Donald Trump has picked him to be the chair. He joined the commission actually only earlier this year after working as a solicitor general for Virginia for a couple of years. He brought a bunch of lawsuits against Biden administration policies that Republicans were particularly opposed to.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Before that, he worked in Congress for Mitch McConnell, and he was very involved in the confirmation of some of the Supreme Court justices, including Amy Coney Barrett. He has lots of connections on Capitol Hill and among the sort of like new Republican set, but also to some of like the old guard. He was a Clarence Thomas clerk early in his career.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
And so he's like a dyed in the wool Federalist Society member.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
Yes. He was making the connection that when you have a very consolidated industry, it's really easy for the government to go to those companies and and sort of push them to make choices that the government wants. He used the word collusion for it's easy for the government to collude with big business to sort of disfavor particular viewpoints, etc.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
You can quibble with that, I think, about whether they're really censoring conservatives or whatever. But I think the point that when there are only a few companies that the government has to go to to sort of like influence policy, it's very true. They only have to go to like three or four and then they can sort of impact everyone.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
It is very interesting because traditionally Republicans have been like the party of big business. And so this is really turning it on its head.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
to have all of these folks like Andrew Ferguson, like Mark Mader, the other FTC commissioner nominee, and Gail Slater, who's going to be taking over at the Justice Department under Trump, who are very, at least anti-big tech, and proposing to make all of these changes to some of America's most successful companies.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I sometimes call it Fox News Mad Libs. They're just using words like woke and trans agenda, and they're not using them in the way that you might use normal words. You're sort of using them as signifiers. Like, I know that these are things that, like, conservatives are concerned about. So I'm going to put this word in there so I can signal to you that I know that this is an issue.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
There's been this longtime issue with alleged censorship of conservative voices. If you talk to some of the Republicans who've become interested in antitrust, a lot of them point to sort of two things that happened around the 2020 election as sort of like their instigating moments.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
One was the deplatforming of Donald Trump from Twitter and Facebook and all of the social media platforms in the wake of the January 6th Capitol riots. And the other one they point to is the whole issue with Rumble and when Rumble was removed from Apple and Google's app stores, also sort of in the wake of the
Decoder with Nilay Patel
Tech antitrust is about to get really weird
That is sort of like this defining moment for them, you know, where they sort of realize that, wow, these companies really do have way too much power over free speech and the ability of Americans to express themselves. For a long time, everyone said, well, if you don't like the policies of Twitter or Facebook, go create your own.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
So they tried to create their own with like Rumble and True Social and some of these other ones. And then the big tech companies just like didn't let people download them. And I think that sort of does help explain a little bit why big tech is sort of the focus it has. The other thing I'll say is some people have described it.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
the Republican sort of hatred of big tech is like big tech is the gateway drug. It's sort of like the way that they get interested in antitrust. Because here are these companies that are having such an impact on the economy. And from there, they sort of get more interested sometimes in the power of other companies.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
I think that's very true, at least for now. We'll sort of see. But I think maybe, you know, as I was saying, the Fox News mad libs, like Fox News, you know, viewers really don't like the big tech companies. This has been like true for a very long time.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
So to hear all of these Donald Trump appointees say that they're finally going to go after them and do something and maybe even break them up, I sort of think is probably appealing.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
That was an objection that a lot of people had to the antitrust bills that were being considered in 2021 and 2022 and then died, is that we were making these rules that were only going to apply to one sector of the economy, where generally we have rules, at least in antitrust, that apply broadly. That isn't true. When antitrust isn't working, people come up with regulations.
Decoder with Nilay Patel
Tech antitrust is about to get really weird
And I mean, that was the entire creation of the FCC and telecom regulation in the late 1990s. So... I think part of the thing is we've just done no regulation whatsoever, really, of the internet economy up to this point.