Mounting antitrust scrutiny has Silicon Valley on the defensive

New York(CNN Business) On Tuesday morning, the Senate Judiciary Committee gathered for a hearing with a dry, forgettable title: "Understanding the Digital Advertising Ecosystem and the Impact of Data Privacy and Competition Policy." It would have been clearer to say it was a meeting about power, and whether some Silicon Valley giants have amassed too much of it.

Over the course of two hours, senators on both sides of the political aisle raised concerns about certain tech companies becoming too dominant in their markets by buying or killing any smaller rival that might pose a threat.

Sen. Marsha Blackburn, a Republican from Tennessee, said there is potential for tech companies to use the vast power of their platforms to "drive out competition." Sen. Richard Blumenthal, a Democrat from Connecticut, went a step further. "Google and Facebook have misused their monopolistic powers. It's not against the law to be big. It is against the law to misuse that power in a predatory way." Blumenthal argued they've done just that by "suffocating competition."

Hours later, Alex Stamos, a former senior executive at Facebook (FB), made headlines at a tech conference by saying his former boss Mark Zuckerberg arguably has "too much power" and should "give up" some of it by hiring a new CEO to run the company. Stamos suggested hiring the current president of Microsoft, Brad Smith, alluding to the seasoned executive's experience guiding the company through antitrust disputes. Then, late Tuesday, a federal judge ruled that chipmaker Qualcomm (QCOM) had violated US antitrust law by charging exorbitant fees to phone makers that license and use its technology.

It was both an extraordinary 24-hour period for the technology industry and also the new normal. The biggest names in Silicon Valley, once hailed by politicians like former President Barack Obama as emblematic of the best of American innovation, now must contend with mounting antitrust scrutiny from state officials, federal regulators and the European Union.

Rep. David Cicilline, the chairman of the House Antitrust Subcommittee, has called for an antitrust investigation into Facebook, with a focus on its acquisitions of Instagram and WhatsApp, both of which now have more than a billion users. The EU has hit Google (GOOG) with three separate billion-dollar antitrust fines, the most recent of which was in March for abusing its dominant position in online search advertising. Even Apple (AAPL), which has sharply criticized the data privacy practices of these companies, is now on antitrust alert. The Supreme Court ruled this month that iPhone owners can sue Apple for monopolizing the App Store.

Indeed, the concentration of power in tech has emerged as an early campaign issue for the US presidential election. Sen. Elizabeth Warren put out an aggressive plan in March to break up Facebook, Google and Amazon (AMZN), the latter by unwinding its acquisitions of Whole Foods and online shoe retailer Zappos. Sen. Kamala Harris, another Democratic presidential candidate, said this month that "we have to seriously take a look" at breaking up Facebook, which she argued had "prioritized its growth over the best interests of its consumers."

"I think everyone is feeling the jitters"

Inside the tech industry, there is predictable skepticism about the thinking behind these calls for greater antitrust enforcement.

"You take your crown jewel companies and try to chop them up?" said Gary Shapiro, president and CEO of the Consumer Technology Association, which represents more than 2,200 tech companies. "This is just pure poppycock populism."

But some in the industry are nonetheless reconsidering how they do business in this new era of antitrust fears, even if the political rhetoric doesn't end up translating into stricter regulatory enforcement. Tech companies are said to be thinking twice about pursuing splashy acquisitions, according to interviews in recent months with venture capitalists, former tech M&A execs and public policy officials.

"Tech companies, both big and small, are thinking more about the potential antitrust risk in their M&A activity," said Logan Breed, an antitrust partner at Hogan Lovells, a law firm that has advised tech companies. "I think everyone is feeling the jitters."

For big companies, the perception of further consolidating power with a billion-dollar acquisition could once again turn them into lightning rods for politicians. For startups looking to get acquired, there's a fear that deals could be held up for longer, during which time employees and customers may flee.

"If [Rep. Alexandria Ocasio-Cortez] blasts you on Twitter, or if Warren talks about an acquisition as dangerous, that's going to put up a speed bump, even if the regulators might approve it," said Stewart Verdery, a lobbyist with Monument Policy Group, which works with Amazon and Microsoft.

"You've got antitrust by tweet as an important factor," he said.

Google declined to comment on this story. Representatives for Facebook, Amazon and Apple did not immediately respond to requests for comment.

Silicon Valley tries to adapt to a new normal

This hesitation highlights a sea change for an industry known for its acquisitive streak. In 2011, Eric Schmidt was comfortable enough to joke that Google bought one company each day. (In fact, Google was then buying about one company a week.) The next year, when Facebook bought Instagram for $1 billion, the conversation that followed was less about Facebook consolidating power than whether it overpaid for a startup with just 13 employees.

While the dollar figure of these acquisitions may get the attention, the Instagram deal is a reminder that today's biggest tech companies have repeatedly tried to scoop up potential rivals early in their life cycles before they have a chance to become massive businesses in their own right. By some estimates, Instagram is now thought to be worth more than $100 billion on its own given its vast audience and promising ad business. Facebook has also used Instagram to clone and kneecap Snapchat, another rival that it is widely reported to have tried to buy early on.

Thanks in part to successful acquisitions, the big tech companies have only gotten bigger. Microsoft, Amazon, Apple, Facebook and Google's parent company are the top five most valuable businesses in the world. Meanwhile, since the 2016 election, internet giants like Facebook and Google have been embroiled in a series of PR crises over data privacy, the role their platforms played in election meddling and the spread of fake news, raising concerns about the impact these powerful businesses are having on society.

David Vladeck, the director of the FTC's Bureau of Consumer Protection from 2009 to 2012, said Facebook's "debacles," Amazon's "growing market power" and the "truly monopolistic power" of Google "have started to worry people." The concern, he said, is that "the barriers to entry are just impossible to overcome, and we've got these tech giants that are very difficult to regulate, and may not be responding as well as they should to consumer preferences."

Against this backdrop, Facebook and Amazon have staffed up with antitrust officials from the Department of Justice. Internet companies are racing to prove they are putting their customers' privacy first. And top executives are forced to walk a fine line in their public messaging, acknowledging the need for greater regulation after two years of missteps while simultaneously arguing big companies need to stay big because only they have the resources to tackle the big problems they enabled.

Or else, they may deflect on the antitrust issue entirely by pointing a fearful finger at China. When asked how Facebook is prepping for an antitrust battle in one recent TV interview, COO Sheryl Sandberg said she heard from unnamed people in DC that there is concern "about the size and power of Chinese tech companies," which "are not going to be broken up." In short, the defense is that breaking up American companies risks empowering Chinese rivals.

Alliances within the industry appear to be shifting, too. On the one hand, you have the spectacle of a Facebook cofounder calling to break up the company he helped start in his college dorm. On the other hand, you have tech trade groups welcoming support on this issue from the conservative Koch network, even if that organization is ideologically distinct from liberal Silicon Valley and is said to have played a key role in undermining political efforts to curb climate change.

This shift could continue into the 2020 elections, as tech companies may quietly root for Republicans to hold onto power, despite their left-leaning employee base, for fear that progressive Democrats could be more aggressive in pursuing antitrust enforcement.

For tech companies looking to be acquired, or continue making big acquisitions, "the current antitrust lineup is better," Verdery said. "What 2021 looks like is an unknown at best."