Colorado Politics

Update antitrust laws, regs to cultivate competition, tame Big Tech | OPINION

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David Seligman



One of the greatest threats to our freedom today comes in the form of the fine-print terms imposed on contractors, consumers and workers by Big Tech and the powerful monopolists that have seized control of our marketplace. For these actors, contracts aren’t about a free and fair bargain, but about exercising more control of people and communities and excluding competitors so they can further dominate the market.

We often think about our anti-monopoly protections as applying to mergers and to collusion among competitors. Collusion often comes in the form of so-called “horizontal restraints” — horizontal because they involve an agreement among horizontal competitors. But antitrust isn’t only about collusion. It’s about coercion and abuses of power too, the “vertical restraints” that dominant corporations impose on weaker contractors, consumers and workers. As the executive director of an organization that fights abuses of corporate power, I believe it is imperative regulators like the Federal Trade Commission and Colorado Attorney General Phil Weiser continue to take bold steps to address vertical restraints exploited by monopolists like Microsoft, Amazon and others to exercise even more dominance over our marketplace.

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We confront vertical restraints all the time, including every time we start up our computers. Currently the European Union is investigating Microsoft for requiring businesses and individuals that purchase Microsoft’s Office 365 also sign up for Teams, its cloud-based communication technology. Earlier this year, the Spanish Startup Association filed a complaint with Spain’s National Markets and Competition Commission, saying Microsoft’s licensing makes it difficult or financially not viable to operate essential Microsoft software on cloud platforms other than Microsoft’s. In these contexts, Microsoft exploits its dominant position in the market for word-processing software to force consumers to sign up for Microsoft products in other markets, crowding out rivals that may offer cheaper and better products.

These kinds of restraints also undermine workers. Amazon claims not to employ the thousands and thousands of delivery workers delivering its packages in grey Amazon vans emblazoned with Amazon’s smile. Instead, it attempts to distance itself from those workers — and from legal accountability to them under the employment laws like minimum wage and anti-discrimination protections — by contracting with thousands of middlemen contractors called “delivery service partners” that Amazon requires to directly employ those workers. But Amazon exercises minute-by-minute control over those drivers through constraints on DSPs, including constraints that allow Amazon to impose brutal work quotas on drivers. It also sets up its contracts in ways that mean DSPs have no meaningful opportunity to contract with anyone but Amazon. So when delivery drivers unionize, Amazon can cut its contract with their employer and ensure those workers lose their jobs entirely. These practices are the subject of a letter to Amazon from more than 30 U.S. senators.

Vertical restraints like these aren’t just about dollars and cents. They pose major threats to our privacy and dignity. For example, Microsoft refuses to lose sleep over repeated hacks of consumer data — including that of high-level U.S. officials multiple times during the past 12 months. Microsoft dominates federal information technology contracts and requires the government purchase many of its products as part of a single package. So as Oregon U.S. Sen. Ron Wyden put it, “the government is effectively stuck with the company’s products, despite multiple serious breaches of U.S. government systems by foreign hackers caused by the company’s negligence.” According to workers we’re representing in federal court in Colorado, Amazon’s vertical restraints on its captive contractors effectively require Amazon’s drivers to deliver packages at a breakneck pace and to urinate in bottles to stay on task. Through another vertical restraint, Amazon may also require those contractors to require drivers to give up their right to go to court to protect their rights.

Our federal and state antitrust regulators and enforcers have taken many important steps to reign in abuses of corporate power. They’ve already gone after Amazon for vertical restraints imposed on independent sellers who sell through the Amazon marketplace; they’ve sued to stop anti-competitive mergers; and the FTC has even taken on one of the most problematic vertical restraints in our marketplace with a proposed rule to prohibit non-compete agreements.

We need to keep the pedal to the metal to take on vertical restraints. I’d urge the FTC and AG Weiser to investigate Microsoft’s tying practices — just like regulatory bodies in the EU and Britain have — and the vertical restraints Amazon and other corporations use to control their workers while attempting to avoid accountability to them.

Our antitrust laws and regulations were put on the books long before with the advent of the digital world and the proliferation of fine-print contracting designed to limit competition and exercise dominance. But those laws were designed precisely to deal with these kinds of abuses of power. Through aggressive enforcement of these rules and by standing up against unfair practices, we can start breaking down the unfair advantages seized by Big Tech and move toward a safer and more equitable future.

David Seligman is executive director of Towards Justice.

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