On Tuesday, June 29, Colorado Attorney General Phil Weiser joined Colorado Public Radio justice reporter Allison Sherry for a fast-paced conversation about the efforts by the AG’s office to protect Coloradans.
- AG Weiser made it clear that one of his highest priorities was antitrust enforcement. For the benefit of the audience, he explained that judicial thinking on antitrust enforcement has been heavily influenced over the past several decades by the Chicago School–which is a conservative approach to antitrust enforcement that espouses faith in efficient markets and suspicion regarding the merits of judicial intervention to correct anticompetitive practices. However, he noted that in many market sectors the trend has been towards predatory and anticompetitive behavior; examples provided by the AG include tech and airlines. This environment results in fewer choices for consumers.
- Unfortunately for AG Weiser, his suit against Facebook (brought in conjunction with many other state AGs) was thrown out by District Judge James E. Boasberg the day prior to his program with us. The judge took this action due to his contention that the AGs failed to prove monopolistic practices on the part of Facebook. When Sherry pressed AG Weiser for an example of Facebook’s anticompetitive behavior, he mentioned Facebooks acquisition of Instagram and SnapChat. He also pointed out that when Facebook faced competition from MySpace, it was much better about privacy protection.
- Sherry asked about AG Weiser’s support for legislation by Republican Representative Ken Buck. He pointed out that Buck, Rep. Neguse, and he possess shared beliefs in protecting consumers and competition. He once again addressed the concern that over-enforcement is not a problem to be avoided.
- AG Weiser provided the audience with a brief history of U.S. antitrust laws-which are themselves historic in the sense that they are old. The Sherman Antitrust Act dates back to 1890. He had nothing but praise for this compact and elegant law. What he sees the need for, rather than re-writing the laws, is instead more clarification around interpretation and standards.
- Sherry brought up Russian social media activity in 2016 that was divisive and inflammatory. As a result, Facebook apparently tweaked their algorithms to deemphasize news and boost personal posts. AG Weiser pointed out that if there were competitive platforms, the actions of one platform would not have such an outsized influence.
When asked about the Supreme Court weighing in, AG Weiser acknowledged that he anticipated involvement from the Supreme Court–but noted that there are not a lot of precedents.
- AG Weiser was especially upbeat about a new law that requires companies that collect data from users to tell consumers and provide an opportunity for the consumer to opt-out. Ideally, he said we would have a federal law that does this but that in the absence of federal action, Colorado acted alone.
- When discussing the Google case specifically, AG Weiser noted that there was nothing personal. However, inaction was not an option. Monopolies attempt to buy or bury rivals. Google, for instance, has attempted to lock up the voice activation in autos. They have similarly attempted to undermine Yelp. This is what monopoly power looks like, and it is bad for other businesses because it is anticompetitive, and it is bad for consumers because it limits choice and increases prices.
The trial date for the Google case is September 2023.
- Attorney General Weiser testimony before the U.S. House of Representatives Subcommittee on Antitrust, Commercial, and Administrative Law (March 18, 2021)
- Prepared remarks: Attorney General Phil Weiser at the 2021 Colorado Judicial Institute membership breakfast (June 8, 2021) – Defending Judicial Independence and the Rule of Law