State Big Tech antitrust probes picking up steam

1 August 2019 9:58pm
States of America

31 July 2019. By Leah Nylen, Mike Swift, and Joshua Sisco.

State attorneys general are moving ahead with antitrust probes of major tech companies such as Google in the wake of a meeting with Justice Department officials last week.

New York, Florida, Arizona, Texas, Louisiana, Nebraska, Tennessee and Mississippi all confirmed they attended the meeting with US Attorney General William Barr and Makan Delrahim, assistant attorney general for antitrust, a roster of states that hasn't been previously reported.

In addition to those eight states, Missouri is also pursuing an antitrust and privacy investigation of Google, a probe that began in 2017, a spokesman for the state’s attorney general, Eric Schmitt, said today. Missouri didn't participate in last week’s meeting. It isn't clear the degree to which the states are acting collectively or individually.

That group — which includes New York and Mississippi, two states represented by Democratic attorneys general — expands the number of states that have expressed interest in antitrust or privacy investigations of the major tech companies. The states declined to comment on whether specific companies were discussed, but the group of at least eight states appears to represent the largest and most diverse collection of states to probe the competition and privacy practices of big tech platforms.

“The bipartisan meeting of state attorneys general, Attorney General Barr, and senior DOJ staff involved a discussion of online platforms and a number of concerns regarding consumer protection issues raised by the states,” a spokesperson for Arizona’s AG said in a statement. “While DOJ already has an antitrust review of big tech companies underway, the states are weighing all of their available options and considering possible independent courses of action.”

In a separate statement, Nebraska Attorney General Doug Peterson said the meeting of the eight states with Barr and Delrahim was “productive” and the states are “considering a range of possible antitrust actions.”

Earlier this year, a group of Republican state attorneys general, including Texas, Nebraska and Louisiana, agreed to move forward with a probe into Google and hired an economist to advise them on antitrust issues. Soon after, news emerged that the US Justice Department was planning its own federal probe into Google, and the states agreed to temporarily put their plans on hold.

Last week’s meeting appears to mark an end to that pause, and notably included a large urbanized Northeastern state with a Democratic majority in addition to smaller, more conservative states in the South or Midwest.

Attorneys general from several of the states have publicly expressed concerns about Google’s location tracking and dominance in the advertising space. Several of the states that met with Barr, including Arizona and Mississippi, also are known to have ongoing privacy investigations or litigation against Google. A Google spokesman declined to comment today.

“Google controls everything in this sphere. They control the whole pipeline,” Louisiana Attorney General Jeff Landry said at a June hearing hosted by the Federal Trade Commission. “Google gets to pick the winners and losers because the system is rigged in their favor and rife with conflicts. Continuing down this road will kill online publishing, or Google will control who stays and who goes.… If we don’t act today, that dream of the Internet will perish.”

Landry, the current head of the National Association of Attorneys General, and Louisiana are taking a lead role in the states’ current investigation, it is understood.

Texas is also taking a lead role. The state was one of the most aggressive in its 2010 probe of whether Google had monopolized the market for search advertising, continuing its investigation even after the US Federal Trade Commission closed the federal antitrust probe in January 2013. Texas eventually closed its probe in 2014 without taking action.

Since last year, Arizona has also opened its own investigation into Google’s smartphone location tracking services. That probe is understood to be ongoing.

Mississippi, meanwhile, has sued Google in state court, saying the company violated a state consumer protection law by allegedly tracking students who used the search giant’s education apps in public schools. Mississippi Attorney General Jim Hood said earlier this year that major tech companies such as Google, Amazon and Facebook are due for a “reckoning” on antitrust and privacy issues.

The former Republican attorney general of Missouri, Josh Hawley, defeated an incumbent Democrat to be elected to the US Senate after he launched a widely publicized antitrust and privacy investigation of Google in 2017.

Since his election to the Senate, Hawley has emerged as one of the biggest foes of the big tech companies, frequently issuing strong critiques of the tech industry’s privacy practices and proposing tough legislation only this week meant to curb potentially addictive and deceptive techniques that tech giants use to exploit users.

As a state attorney general, Hawley struggled to find other states to join Missouri’s probe. But in the wake of the Cambridge Analytica privacy debacle in 2018 and the growing concern from both the right and the left in American politics that the big tech platforms have become too powerful, that political dynamic appears to be extinct.

The Missouri probe has continued under Hawley’s successor, Schmitt. “It is still active, but beyond confirming that, it is our policy not to comment further on ongoing investigations,” said Morgan Corder, a special assistant to the Missouri attorney general.

--Additional reporting by Amy Miller and Nicholas Hirst.

ABA 2019