Karl Herchenroeder

Different antitrust interpretations of the FTC and Sherman Acts create a “dangerous” enforcement divide between the FTC and DOJ, ex-FTC Chairman Tim Muris told a NetChoice panel Wednesday. Companies can expect different sets of rules based on agency, he said. Noting all chairs take over with their own agendas, ex-FTC acting Chief Technologist Neil Chilson, now a researcher at Stand Together, said Chair Lina Khan’s approach seems to be to “move fast and break things.” Khan has taken procedural measures, limited bipartisan potential and given herself more power, said Muris, noting Democrats made it easier for the agency to pursue rulemaking. It’s a move away from consensus antitrust enforcement, said ex-acting Chairman Maureen Ohlhausen, now at Baker Botts. This embracing of more rulemaking and regulation is a departure from the consumer welfare standard, said Ohlhausen: Some people feel antitrust has become too difficult to enforce, so this is a sidestep, creating questions about dual enforcement. The three panelists led the agency under Republican presidents. The agency didn't comment.

Congress needs to identify an AI regulatory framework so companies like Facebook can be held accountable for biases and side effects associated with algorithms, said House AI Task Force Chairman Bill Foster, D-Ill., during a hearing Wednesday.

Facebook and Instagram illegally deceive users and the government by hosting murder videos violating their terms of service, gun safety advocate Andy Parker alleged in an FTC complaint Tuesday. Testimony from whistleblower Frances Haugen last week confirmed Facebook can remove videos but doesn't because it's not in the company’s financial interest, Parker told reporters at the National Press Club. He filed a similar complaint in 2020 against Google and YouTube (see 2002200049). These stem from a video of Parker’s daughter Alison, a reporter who was assassinated on live TV in 2015 (see 2002030059).

Senate Republicans offered favorable impressions of DOJ Antitrust Division chief nominee Jonathan Kanter after his confirmation hearing last week. Sen. Thom Tillis, R-N.C., told us he’s leaning toward a yes vote.

DOJ could use more trial attorneys and officials with substantive expertise, Antitrust Division chief nominee Jonathan Kanter told the Senate Judiciary Committee Wednesday during his confirmation hearing. He promised to uphold the rule of law and ensure DOJ has proper access to investigatory documents. The committee will vote on his nomination and others later. Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., asked what Kanter would do with additional resources, citing her legislation to increase merger fees (see 2106250062). Kanter said he supports “appropriate funding” and would recommend more trial attorneys and more substantive expertise. Noting Tuesday’s hearing with the Facebook whistleblower (see 2110050062), Klobuchar asked if Kanter would support extending the same protections to civil cases granted to whistleblowers in criminal cases. Kanter said it’s extremely important that authorities have access to all relevant information. Monopolies can intimidate other companies, let alone individuals and, as a “general matter,” he supports ensuring authorities have access to the relevant information and witnesses, he said. Antitrust ranking member Mike Lee, R-Utah, cited some “disturbing trends” with antitrust law under this administration, specifically discussing the FTC’s withdrawal from the 2020 takeover guidelines, even though DOJ has retained them (see 2109150061). Lee cited the FTC reportedly asking combining parties about their environment, social and governance policies in antitrust cases and asked if Kanter would do the same at DOJ. The purpose of antitrust law is to protect competition and ESG policies unrelated to competition issues aren't related to antitrust enforcement, he said. Kanter called digital interoperability a critical principle for protecting competition.

The Senate Homeland Security and Governmental Affairs Committee passed cyber incident reporting legislation Wednesday. It plans to attach the bill to the National Defense Authorization Act, mirroring efforts in the House (see 2110010045).

Congress will move forward with legislation to roll back Communications Decency Act Section 230 immunity and give victims of online harm legal remedies against amplified content, Senate Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn., told reporters Tuesday. Members of the subcommittee are “very engaged” on the issue, and it’s going to be a priority to find consensus, said ranking member Marsha Blackburn, R-Tenn., speaking to reporters after a hearing with Facebook whistleblower Frances Haugen (see 2110010047).

Congress should investigate Facebook, subpoena its internal research about youths and block the platform’s plans to launch an Instagram for kids, consumer advocates told us Friday. They joined calls from Democrats and Republicans urging Facebook to drop those plans.

Thursday’s testimony from Facebook underscores the need for the FTC to update the Children's Online Privacy Protection Rule (see 2105110052), Senate Commerce Committee Chair Maria Cantwell, D-Wash., told us after a Senate Consumer Protection Subcommittee hearing (see 2109240009). Members said Global Head-Safety Antigone Davis evaded questions about the company’s internal research showing a link between youth mental health issues and Instagram activity (see 2109150053). “They had information that they basically said they didn’t, which is a problem,” said Cantwell.

The Senate Commerce Committee’s privacy hearing Wednesday showed there’s “more commonality than expected,” Chair Maria Cantwell, D-Wash., told reporters. Federal preemption remains a hurdle, but ranking member Roger Wicker, R-Miss., told us he and Cantwell are going to “intensify” efforts to reach agreement over the next two months.