From King James to Google: Barry Lynn on the Antitrust Revolution

Audio of this conversation is available via your favorite podcast service.

Barry Lynn is the executive director of the Open Markets Institute in Washington DC and the author of this month's cover essay in Harper's titled "The Antitrust Revolution: Liberal democracy’s last stand against Big Tech." I spoke to him about his essay, about the remedy framework proposed by the US Department of Justice following the ruling in the Google search antitrust trial, and what to anticipate for the antitrust movement following the 2024 US presidential election.

What follows is a lightly edited transcript of the discussion.

Justin Hendrix:

Barry, I'm pleased to speak to you today. We're going to talk through an essay you have in Harper's Magazine, in the October issue, called the Antitrust Revolution Liberal Democracy's Last Stand Against Big Tech. And hoping to talk a little bit about the news of the week as well. It's been a big week for antitrust with the DOJ publishing a framework for how it's thinking about remedies in a recent antitrust case so, hopefully, we'll be able to get into a little bit of that. But I want to start with this essay, I want to start a little bit with your thinking in expansive historical terms here. Why did you start with King James?

Barry Lynn:

Well, I started with King James because I wanted folks to really understand how long people in the United States, around the world, have been developing the tools and the thinking that we use today to fight monopoly, and to control monopoly, and to achieve a democracy within our political economy. And really to focus on the fact that so many of the threats that we face today we've seen analogues to them in the past, technological analogues which could be the early days of the telegraph and going back to the 1840s. But also just power analogues in terms of the concentration of control over the state or over an all-powerful corporate estate.

So much of modern democracy, it stems not just from ... In America, we tend to trace everything back to the Declaration of Independence, which was a pretty important document in human history. But before that there were a number of fights in the 17th century, early 17th century, mid-17th century, in Britain that also really shaped what people do and how they do it and how they think about these things. That's why I took it back to the fights against King James's efforts to establish himself as an authoritarian sovereign.

Justin Hendrix:

Help me out with this comparison because you move from King James, of course, to big tech so you take on, in this piece, Google, Amazon, Microsoft, Facebook, Apple. You say they enjoy the power to create and destroy, to censor and punish, to make and unmake who they will, these corporations. That even as we fear consolidation of power in the public state have erected a private state over us. Help us out a little more with this comparison. What makes these companies the same as a tyrant like King James?

Barry Lynn:

Yeah, so King James was famous. He's still famous today among even amateur historians. As a person who's imagined himself as the center of all power, that he was the person who basically could make and unmake the people of his realm so if he wanted you to succeed he would empower you to succeed. But if you crossed him or if he just got tired of you, he would take away all of the licenses, all of your abilities to succeed. He could actually just strip you of your access to the marketplace, your access to the power centers. He could basically crush you. He thought this was a good thing, he actually said this was his art. His great governing art was the ability to make and unmake people.

And so, the foundations of liberal democracy was the fight to establish a rule of law so that there were certain things that the state could not do. That there were certain ways in which the state had to treat everybody the same so that people could wake up in the morning and know that their properties were safe, that the king couldn't take their lands, so that they knew that their businesses were safe, which is another form of property so the king couldn't take their business and give it to somebody else. That they could speak their minds in a way in which the king wouldn't have the ability to punish them arbitrarily, not necessarily because there were any rules, it's because he didn't like what they said.

Those fights 400 years ago were the foundations to this fight to establish rule of law to constrain the power of the people who control the state. In that moment, the king, that's the foundation of modern democracy, and some places it failed. France, at that time, the French failed to achieve that and you ended up with Louis Quatorze as the centralizing, all-powerful, sovereign within France. In fact, almost every place in Europe during that period, the lights went out. There was a period in which the sovereigns concentrated absolute power in most of Europe. The one exception was Britain and England where the people established a rule of law that prevented that.

When we look at Google today, when we look at some of the other ... Amazon, Facebook in certain ways, Microsoft in certain ways, we see corporations that, within the realms that they control, have similar power today to make and unmake people because they're not constrained by traditional rule of law. I wanted people to see how, one, to really understand what is the nature of the problem posed by today's big tech corporations, the big platform monopolies, the gatekeepers, masters in the middle, and to see how we've had analogous fights in the past that we can learn from, including the original fight against authoritarian sovereigns.

Justin Hendrix:

So I want to jump forward a little bit in history to your critique in this piece of the neoliberal approach to antitrust, the kind of failure I suppose of the last handful of administrations leading up to the Biden Administration to address these issues in the US in particular. Want to understand a little bit more about where we went wrong. You point to Robert Bork.

Barry Lynn:

We've talked a lot in recent years about what Bork, Robert Bork did, and Richard Posner, and the other people that we tend to lump into the Chicago school or to the neoliberal movement, the libertarian movement. Even as a lot of your listeners will recollect, President Biden in the summer of 2021 in his executive order in competition singled out Robert Bork and said, "This Borkian approach to competition policy is fantastically dangerous and we're getting rid of it." It was a failed experiment, which was one of the things that ... The revolutionary nature of what Biden did in that moment, I think most folks in this country have still not really come to terms with, that's certainly true of most of the press. I know it's different for your audience. But the other part that Bork did is his ... We tend to think of antitrust, of competition policy mainly in terms of breaking things up.

There's a reason for that because it's exciting when you think about breaking things up, and we have some examples of some breakup thinking just this week with the DOJ's early proposals for remedies in the Google antitrust case. It's like, antitrust for a lot of folks, in its most simple images of this giant broad axe that the people can pick up and we can use to break up concentrations of power, corporate concentrations of power that threaten our democracy, that threaten our liberties. That's really exciting the idea of picking up an axe and going after something big, it's empowering. But before we got to the point of actually really thinking about structure, of restructuring, which at the federal level was the Sherman Antitrust Act of 1890.

Three years before that was the Interstate Commerce Act, and the Interstate Commerce Act at that point was focused on railroads. It was later extended to communications platforms in 1910, Mann-Elkins, but its basic rules, set of rules were non-discrimination. If you control a network that people depend on, it could be a national network, it could be a local network, as long as some people depend on your network to get to market, to do their business, to live a good life, you have to treat everybody the same. You cannot discriminate in how you treat people. There's a simple rule of law, which is if you want service everyone gets the same service at the same price and you have to wait in line, behind. So rich people have to wait in line behind poor people. Big corporations have to wait in line behind smaller corporations, small businesses, family businesses.

That was the foundations of ... Even before we got to the Sherman Act, the Sherman Act stood on top of a more fundamental law, which is the Interstate Commerce Act, which says if you control an essential service thou shalt not favor anybody, and thou shalt not disfavor anybody. That was the pulling out of history, pulling out of the great fight against King James. These principles of thou shalt not favor or disfavor anyone, thou shalt treat everyone the same, we are going to have a rule of law that is easy to understand, easy to enforce, and that makes us safe in our ability to speak our minds and safe in our ability to run our businesses.

Justin Hendrix:

I want to look at Google, which is of course another theme running through this, and putting Google back into a slightly less extraordinary position than the one it's in now is a part of this essay. Just this week, Judge Amit Mehta has released this framework for how to think about remedy in the Google Monopoly Case that he just decided in the last couple of months. What do you make of this document? Is it the framework we need or you think we need to begin to think about how to take the axe to Google?

Barry Lynn:

I think that the frameworks ... When you look at with the DOJ and their own statements about what they're looking at, there were a lot of folks who said we're expecting ... Let's go back. A lot of folks didn't expect the DOJ to win this case because the big tech lobby machine was just saying, "Oh, there's nothing here, this is ridiculous. This is just a desperate ploy to do something and there's no way they're going to win." And a lot of the press, not you guys, but a lot of the press, that actually, that spin really had a real effect on a lot of the press and a lot of policy makers, a lot of the public. It was wrong. These guys are ... As Judge Mehta said, "Google is an illegal monopoly." But then, in terms of what to do about it, then again what we heard, the lobby machines kicked into gears, "Oh, there's nothing, just a little stuff around the edges," right?

One of the things that the case hinged on was the fact that Google pays north of $20 million a year to Apple to be the default search engine on iPhones, which we can go into just the hypocrisy of Apple basically sticking the spy device on their privacy machine and then taking $20 billion plus in surveillance money from Google in exchange for that. There's a lot to be unpacked about the hypocrisy of Apple, but on terms of the remedies people are saying, "Oh, maybe it will just be prevented from engaging in this kind of payoff and that's really the key thing." So what the DOJ said is, "No, we're going to take big parts of you off. We're going to take the things that you've been leveraging, to the platforms that you've been leveraging to increase your search monopoly, like Chrome or Android. We might just lop those off."

Or seek to lop them off, it still has to be debated in court. And another thing, they actually came out with this statement about data, and at one point apparently Google said something about how, "Oh, we can't open our data vaults to outsiders because there would be privacy issues." And then, the DOJ spun around and said, "If there's privacy issues with the data, then you can't have access to the data either." So they may be moving towards lopping the data off of Google, all the data that it collects about you and everybody else, all the corporations in the world and all the people in the world, and then it's storing in these server farms that are burning up the world. That was a pretty radical ... But it's actually also ... It's radical relative to where we've been, set of proposals, but it's also, and we should understand this, these are traditional actions. Everything that they are talking about are traditional actions and just brings us back to the kind of approach to rule of law that we've applied to communications and commercial networks, essential networks, based on a set of principles that we can trace back 400 plus years.

Justin Hendrix:

I do want to pause on this data point because I also find it very fascinating to think about how this could play out. I'm not suggesting that some of the other categories of harms around search distribution, revenue sharing, display, search results, advertising scale monetization. I'm not suggesting that those aren't interesting but the idea that Google's accumulation and use of data, addressing that could somehow be part of this remedy to think about what that could lead to, what that would even mean. Think about the data as being the sort of substrate for all of Google's AI activity, for instance, for much of its general kind of competitive advantage or ability to have a technological imagination that goes beyond so many other companies. Much of it is based on that accumulation of data so, I don't know, have you thought more about that? What in the world would that even look like, to address that part?

Barry Lynn:

Yeah, well we’ve thought about it a lot. We've been thinking about this for more than 10 years in terms of ... Here at Open Markets we built our ... Most of our analysis about big tec,h we built it around a really simple model, going back to actually 2009, which was understanding Amazon, how Amazon runs book retail platform. We built all of our analysis around that because books are something that people understand, it's ideas that are moving from author to reader, but they're also physical so you can actually get your head around how a corporation is controlling this movement of physical books, how it's exercising power over individual publishers, individual authors, individual readers. That's where a lot of our analysis develops from.

Going back more than 10 years, we started to think about the data that is being collected by Amazon about every reader and how they're using that data to manipulate what you read, how you read, in ways that are warping conversation broadly in the United States, that are essentially favoring certain people and certain viewpoints and disfavoring others. We've been talking with folks at the DOJ and in this community about who owns the data for a long time, and in the case of Google it's even more easy to understand how much of the data that Google collects is essentially public in nature. It's like when you drive from one place to another and you have an Android phone or you have Android on your car, they're tracking you. They track you at every single point along your route.

When you walk down the street with an Android device or a iPhone that is open to Google surveillance, they track every single step you take. So they're tracking everybody moving through society, driving across our roads, every moment of every day, and they're storing this all in these giant server farms. But when you think about that, it's like that kind of data about people moving to the streets, traditionally that was something that was collected only by government, and government would use that to decide about how to build roads, how to control traffic. Do we need an extra lane someplace? Do we need a traffic light someplace? Do we need to change the traffic lights.

Now all that information is inside a private corporation, but it's public information. It's the information about how the public and the aggregate functions. Google search. During the pandemic, people would search for certain things, and it was actually an early warning about certain aspects of the pandemic. So there's all this data, all that is being collected by Google in different ways, by Microsoft, by Apple, of how the public in the aggregate is operating and that information properly belongs to the public. Right now it's inside of Google's vaults and they don't let us have it.

Justin Hendrix:

I think it is extraordinary to think about how far this remedy could go. I'm not sure looking at what the DOJ has written here about accumulation and use of data, that they're necessarily thinking of some of the things that I've seen written about this, hiving off that data and making it available for public use, maybe in the way that you're suggesting here, as opposed to somehow making it available to other companies in this space. It seems like there might be some limitations on where things might go but it seems like a huge opportunity.

Barry Lynn:

What the DOJ is saying here is it's going to take us a long time, implied in this, because again, we've been having this conversation with folks in the DOJ and the FTC and in Europe for a number of years now about the nature of the data. I wish we had a paper that we'd put together that I could steer you to but we've been having extremely rich conversations. There's two sides to this. All of this data, if it belongs to the public, how do you actually create a system of safe access? That's really complicated. That's going to take probably years of effort to figure out how to open this data for use by the public, by researchers, and academics, by other businesses, to do it in a safe way so that we're not taking existing problems and exacerbating them or just warping them into a different shape.

But there's actually a much simpler step of just saying, "For all those reasons, you, Google, we might have to block your ability to use this data to manipulate people." That can be done tomorrow. Opening the data to the public in a way that is both effective, safe, and fair, that's going to take some real thought, that's going to take some creation of institutional structures. But just telling Google, "Thou shalt not have access to this data," that's something that the DOJ and the judiciary can do tomorrow.

Justin Hendrix:

I want to turn to the election, and you've already mentioned that you regard Joe Biden's Administration as revolutionary with regard to the issues that you care about most there at Open Markets, and part of that is about the people. In this essay, of course, you refer to folks like Jonathan Cantor, FTC Chair, Lina Khan, who I know you know very well, others who essentially Biden has put in place. You also say that Trump would be a disaster for your movement and that perhaps the bosses of these corporations ultimately may not decide to tolerate him in the long run either. I don't know, how do you look at this election through the prism of maybe not who should win or who should lose, but what the stakes are for this concern?

Barry Lynn:

Yeah, yeah. So first, the Biden Administration has truly been revolutionary in its approach, in a way that has been appreciated by very few people. The actions they have taken are the most important set of actions broadly on antitrust, on anti-monopoly, but specifically on the communications and commercial platforms. This is the most important period in antitrust enforcement in history. We have never seen this kind of activity in a three-year period, and we're really just talking about three years at this point. Three years ago, Jonathan Cantor was not even in office so in terms of the speed at which these people have gotten going and the broadness of their thinking and of their actions, unbelievable. Every single person in the United States who believes in democracy, who believes in individual liberty, and around the world, should be thanking these people in their evening prayers.

So going forward, that's where we're starting with because clearly President Biden is not running for reelection, so the alternative is between Vice President Harris and former President Trump. With Vice President Harris, I really think that there's been a lot of concern that she might, if she becomes president, if she wins the election, then she will alter the course of competition policy. The idea is that President Biden turned the ship around 180 degrees and got it moving in the other direction. That's revolutionary.

And then, so people are saying she comes out of California, she has all these friends who are big tech people, so maybe she'll steer it halfway back. I think that is really ... The idea that a former attorney general, that someone who is completely loyal to President Biden, someone who understands what it means when a court says Google is an illegal monopoly, that person is going to basically do a dirty deal with Reid Hoffman and accept his bribe? I'm going to give you a bunch of money in exchange for not enforcing the law? That's insulting to Vice President Harris, that is grotesque.

Then there's also just the fact that she understands, I am sure, maybe not all of her people, but she understands that this is smart policy. Good, smart, anti-monopoly policy will increase prosperity, will increase growth, will increase the kind of innovation that we need, the technological innovation that we need to overcome climate change. This is good for our political wellbeing and is good for our prosperity. It means lower prices, it means higher quality goods. It means a better world to live in. Is she going to change that? I don't think so. Now Trump, okay, he's got as his vice presidential candidate, Mr. Vance, who has been somewhat good on certain aspects of the anti-monopoly movement, has a very actually mixed approach to a lot of this stuff. And then, there's Trump, who did some weird interesting things in his first four years, partly because he was under instructions from Rupert Murdoch who wanted Google taken down.

Trump, going forward, if he wins, he's already told you what he's going to do. He's in bed with Elon Musk. From Trump's point of view and Stephen Miller's point of view, maybe they can actually ... They're imagining that when do we get in there and we start to implement our vision of rage and retribution and concentration of all authority in the hands of President Trump, in the way that King James wanted to have all authority, that I, Trump, will take control over X. I, Trump, will take control over Facebook. I, Trump, will take control over Google and make them work for me. It could happen, and that's called Fascism. If that happens, if Trump wins, the results will be almost inevitably a blending together of the state and the private corporate estates that run our communications and commercial platforms in ways that lead us to something that looks a lot like China or something that looks like traditional authoritarian fascist regimes, but on steroids because of the power of these platforms.

The only question is, who actually ends up in charge at the end? Is it the Trumpy people end up in charge or is it someone else in the system that ends up in charge?

Justin Hendrix:

The corporations?

Barry Lynn:

Like the corporations, yeah. That's the history of Fascism. At a certain point, when you blend the state and the estate, the private corporate estate together, you don't really know who's the boss. But what you do know is, there is a goddamn boss in the middle of this, and that boss is dangerous in every way possible.

Justin Hendrix:

And just to clarify for my listeners, the idea of Reid Hoffman making a bribe, he's one of a couple of billionaire democratic donors who said in various venues, I believe, that they would hope that Vice President Kamala Harris would replace Lina Kahn if she became president. Of course, we have no way of knowing if somehow they made their giving contingent on such a thing but it doesn't seem like that's the case.

Barry Lynn:

Yeah, the law is very, very loose here. Democratic citizens could look ... If you just pull back and you look at what he did, did it technically break the law? Some people might argue that it did, especially the first time he did it. But whether it technically broke the law or not it wasn't de facto, it was a bribe. You don't enforce the law, I'll give you a bunch of money.

Justin Hendrix:

This essay spends a lot of time looking back to the past, obviously King James, the history of the American Revolution, et cetera, we've talked about some of this here. Where does your mind go when you look perhaps out into the future? What type of future can you imagine if, in fact, we accomplish some of these remedies that we've discussed today or some of the reforms that you think are so important will carry on in the next decade or so? What does that future look like?

Barry Lynn:

Yeah, and that's a fantastic way to start to bring this together because it's like ultimately, and this is a point that we've been making at Open Markets for a long time. The future that we want lies in relearning the tools and lessons of the past. The way that Americans in the past actually built this amazing prosperity, even while building a system, a democratic system that is pretty respectful of individual liberty and became more respectful, actually allowed people to engage in moral growth, to overcome slavery, to the system of slavery that was built into the original Constitution, to overcome in a lot of cases the racism that was then built into the Jim Crow system. I mean, to actually morally grow as individuals and as a nation. This was partly because the system was designed to free people to be themselves, to seek their own information, to dream their own dreams, to engage with the spiritual realm in the ways that they chose.

And going forward, if we continue down this path, we continue with the Biden Revolution and antitrust and anti-monopoly, if we bring these corporations fully under control and reopen our marketplaces and reopen our ability to report news and share news with each other and debate in a reasonable way with one another, our future is absolutely limitless. It's like the great challenges of today we will be able to master them because people are really fantastically smart. We can address ... With the freedom to develop technologies without the control of monopolies, we can overcome the systems that are destroying our climate within a few years. The direct threats to our democracy we can overcome them, but then when you overcome them you find yourself free in ways that actually this generation has never found itself free. So the future is one of which we can dream in ways that we cannot even imagine right now, and then act to make those dreams real.

So the democracy, the better democracy, the pure democracy that we have wanted, we can really start to move in that direction soon. The clean and the resilient world that we have imagined, we can begin to move in that direction soon. A peaceful, prosperous system of cooperation among nations, again, break the power of the monopolist and the mercantilist and we can begin to move very soon towards a more peaceful, less tense, more cooperative system for international relations. Every single crisis that we face today, somewhere down the chain of causation there's a monopolist who is either the primary cause or one of the contributors, so every problem we face today we will be able to overcome or significantly reduce if we continue down this path.

Justin Hendrix:

Barry Lynn, the author of an essay in Harper's called "The Antitrust Revolution, Liberal Democracy's Last Stand Against Big Tech." If you happen to go by a physical newsstand, of which there are vanishingly few, even here in New York City these days, you'll note it because there is a picture of a sword piercing the logos of several of the largest tech firms in the United States and in the world. So I suppose, Barry, you're one of the people wielding that sword, along with the other folks that you mentioned in this essay who are along the same way. I appreciate you taking the time to speak to me today.

Barry Lynn:

Hey, thanks for having me, great to talk to you.