TR Daily Barr Vows DoJ Focus on Practices of Internet Giants
Tuesday, January 15, 2019

Barr Vows DoJ Focus on Practices of Internet Giants

Attorney General nominee William P. Barr said today that he wants the Justice Department to focus on the competitive effects and privacy practices of Internet giants such as Facebook, Inc., and Google LLC, while Senate Judiciary Committee Chairman Lindsey Graham (R., S.C.) expressed concern about social media platforms and said he wants lawmakers to “find some way to tame the Wild West.”

In response to questions during his day-long nomination hearing today, Mr. Barr weighed in on the growing dominance of online companies.

During the hearing, Sen. Mike Lee (R., Utah), chairman of the antitrust, competition policy, and consumer rights subcommittee, asked Mr. Barr for his philosophy on antitrust enforcement.

“The purpose of the antitrust laws obviously is to protect competition and that … it is competition that ultimately redounds to consumer benefits,” Mr. Barr said. “At the same time, I’m sort of interested in stepping back and reassessing or learning more about how the Antitrust Division has been functioning and what their priorities are. I don’t think big is necessarily bad, but I think a lot of people wonder how such large behemoths that now exist in Silicon Valley have taken shape under the nose of the antitrust enforcers.”

Mr. Barr added that companies can lead in the market “without violating the antitrust laws, but I want to find out more about that dynamic.”

Sen. Joshua D. Hawley (R., Mo.) asked Mr. Barr about the “extraordinary concentration of power” of Silicon Valley companies such as Facebook and Google and the challenges that the lawmaker said they pose to competition and the free flow of ideas.

Mr. Barr said he wants the support of the Antitrust Division “to get more involved in reviewing the situation from a competition standpoint. I also am interested in the issue of privacy and the question of who owns this data. … It’s not an area that I have studied closely or become an expert in, but I think it’s important for the department to get more involved.”

In response to a question about whether he would consider prosecuting any violations of the 2012 privacy consent decree between Facebook and the Federal Trade Commission, Mr. Barr said he could not comment on that as he might have to rule in that proceeding.

Sen. Hawley also criticized the influence that companies such as Facebook and Google have on information and their influence on news, saying their actions have disfavored conservative and libertarian views, and asked if DoJ has the authority “to address bias by dominant online platforms.”

“I’d have to think long and hard before I said that it was really the stuff of an antitrust matter. On the other hand, it could involve issues of disclosure and ... implicate other laws like that,” Mr. Barr replied.

Sen. Hawley asked if DoJ has the authority to take action if online companies impact elections and swing voter turnout to favor a candidate of their choice. Mr. Barr said he would have to think about that.

In response to another question, Mr. Barr said that there are concerns about the way Silicon Valley companies could use their power to discriminate against rival products or services.

He was asked if historic levels of concentration, particularly in the tech sector, is a concern for competition.

“The thing I’m concerned about are the network effects that … are now at work, where they’re so powerful that particular sectors can potentially be subsumed … into these networks,” Mr. Barr said.

Sen. Marsha Blackburn (R., Tenn.) also asked Mr. Barr about DoJ action toward Big Tech.

Facebook and Google claim to only be platforms for users “but they are also getting into the content business,” she said. “Their tentacles are spreading.”

Ms. Blackburn said the companies’ market dominance “is causing some problems, and as we discussed, these companies are violating users’ privacy, they are recklessly sharing their users’ personal data with third parties. This is done without explicit permission. We can’t let these companies collude to drive out competitors or to ignore vital data privacy protections. And Big Tech operated really without regard to the law.”

“I’m interested in these issues and would like to have them fully ventilated at the department,” Mr. Barr told Sen. Blackburn. But he said he also would be recused from actions involving AT&T, Inc., in light of the AT&T-Time Warner, Inc., merger while he was on the latter’s board of directors. He said he doesn’t want to discuss tech issues in detail until discussing them with ethics personnel at DoJ if he is confirmed.

Sen. Blackburn also asked DoJ to look into issues where companies sell location information of consumers that can be used by third parties such as bounty hunters. He said it would.

In response to a question from Sen. Amy Klobuchar (D., Minn.), Mr. Barr confirmed that he has agreed to recuse himself to matters relating to the department’s review of the AT&T-TWI merger.

She also asked about a sworn affidavit that Mr. Barr signed as a TWI board member suggesting that DoJ’s opposition of the AT&T-TWI deal was politically motivated due to animus by President Trump toward the merger. She asked what Mr. Barr meant.

He said he thinks the statement speaks for itself, but he said he was “concerned that the Antitrust Division was not engaging with some of our arguments, and I got concerned that they weren’t taking the merits as seriously as I hoped they would.” He added of DoJ, “I’m not sure why they acted the way they did.”

Mr. Barr also told the senator that election security would be a key priority, although he did not discuss specifics, including in response to Sen. Klobuchar’s question on legislation to mandate the use of paper ballots.

“I don’t know what’s a good idea, what’s a bad idea right now, because I haven’t gotten into this area,” he said. In response to a question about a controversial North Carolina election, he said, “I want to make one of my priorities the integrity of elections. This is not an area where I have been involved deeply with before.”

Mr. Barr also told Sen. Ben Sasse (R., Neb.) that he doesn’t doubt that Russia “attempted to interfere in our elections” and he cited the vulnerability of the U.S. in the Internet age to activities that can “create doubt, undercut confidence in our election process, and also torque our public discourse in ways that we find hard to perceive.” He reiterated that protecting the integrity of elections would be a top priority.

Sen. John Cornyn (R., Texas) asked Mr. Barr if he believes about the involvement of Chinese tech vendors Huawei Technologies Co. and ZTE Corp. in espionage and the theft of U.S. intellectual property. Mr. Barr said he shares the concerns and said that Verizon Communications, Inc., where he used to work as executive vice president and general counsel, would not use “that kind of equipment even though ... it would be economically attractive.”

He also called China “the paramount economic and military rival in the world,” and praised former Attorney General Jeff Sessions for cracking down on China for the theft of U.S. technology.

Sen. Patrick Leahy (D., Vt.) queried Mr. Barr regarding 2003 testimony in which he testified that Americans do not have a Fourth Amendment right to the protection of data turned over to third parties. He asked if Mr. Barr still takes that position in light of a Supreme Court decision last year that said law enforcement agents generally must get a warrant based on probable cause to secure the historical cell-site location information of people (TR Daily, June 22, 2018).

“I haven’t read that decision, senator. It may modify my decision,” Mr. Barr replied. “I’ll take a look at that.”

Mr. Barr said that his 2003 testimony relied on an earlier court case dealing with bank records.

In opening remarks at today’s hearing, Sen. Graham, who took over as chairman of the Senate Judiciary Committee this month, cited several priorities for the committee.

“This committee has within it the ability to do big things long overdue. I know Sen. Blackburn wants to do something on social media. Sen. Klobuchar’s got some ideas about how to make sure if you put an ad up on social media, you have to stand by it,” Sen. Graham said. “We’re all worried about social media platforms being hijacked by terrorists and bad actors throughout the international world. We’re worried about privacy. Do you really know what you’re signing up for when you get on one of these platforms? I’d like this committee, working with [the Senate] Commerce [Science, and Transportation Committee], to see if we can find some way to tame the Wild West.”

“I look forward to solving as many problems as we can and having a contest over ideas that really matter to the American people,” Sen. Graham added.

He also noted that Sens. Thom Tilles (R., N.C.) and Chris Coons (D., Del.) have idea on intellectual property. —Paul Kirby, [email protected]


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