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Biden picks Google foe to lead DOJ antitrust as it mulls plan to break up Big Tech

The White House seen in the early evening.

President Joe Biden today said he will nominate Jonathan Kanter to be the assistant attorney general in charge of the Department of Justice’s antitrust division. Kanter is an attorney known for his criticism of Google and will take over the antitrust division as it considers a Biden plan to reverse harmful mergers and break up monopolies.

Kanter “is a distinguished antitrust lawyer with over 20 years of experience” and has been “a leading advocate and expert in the effort to promote strong and meaningful antitrust enforcement and competition policy,” the White House announcement said.

US Sen. Amy Klobuchar (D-Minn.) applauded the nomination in a statement. “For years, Jonathan Kanter has been a leader in the effort to increase antitrust enforcement against monopolies by federal, state, and international competition authorities. His deep legal experience and history of advocating for aggressive action make him an excellent choice to lead the Department of Justice’s Antitrust Division,” Klobuchar said.

Kanter represented companies against Google

Kanter founded the Kanter Law Group, described by the White House as a “boutique antitrust law firm that advocates in favor of federal and state antitrust law enforcement.” The firm’s website says that Kanter represents clients before the Department of Justice, Federal Trade Commission, Congress, and state attorneys general. Kanter also worked as an attorney in the FTC’s competition bureau between 1998 and 2000.

“During the Obama administration, Microsoft engaged [Kanter] to push antitrust officials to take action against Google. More recently, he represented clients, including Yelp Inc., who urged the Justice Department to sue Google last year,” Bloomberg wrote today.

“Antitrust enforcement is barely on life support,” Kanter said at an event about Amazon in 2016, as quoted by Bloomberg. “When was the last time you can remember a major antitrust agency bringing a monopolization case? The reason you can’t remember it is because they haven’t done it.”

Kanter: Google has “long history of harming content providers”

Also in 2016, Kanter wrote an op-ed for The New York Times titled “Don’t Hand Our TVs Over to Google.” Kanter’s op-ed criticized then-Federal Communications Commission Chairman Tom Wheeler’s proposal to give consumers more choices in set-top boxes by requiring cable and satellite-TV companies to provide content and programming information to makers of third-party hardware or applications. Kanter argued that Wheeler’s plan, which was never adopted amid opposition from cable companies, “threatens to replace one set of powerful gatekeepers with a new one: Google.”

Kanter outlined some of his views on Google in that op-ed, writing:

The FCC must ensure that Google doesn’t engage in the same behavior when users search from their TVs. Absent FCC oversight, the record suggests, Google will favor its own video services in search results just as it does today for shopping, news, and other categories.

Google also has a long history of harming content providers. To attract users and advertisers to its services, Google needs content. But it loses ad dollars from additional searches when users click away from its search engine, so it often copies that content—sometimes in small pieces—from third parties.

For example, Google’s image search engine displays high-resolution and large-format images from third-party sites, thereby promoting piracy. Google also seems to favor sites that rely on ads rather than subscription fees, a practice that has cut into news outlets’ profit margins. These kinds of practices starve content providers of revenue and chill investment in content creation.

Kanter’s DOJ could sue Big Tech companies

Biden’s recent executive order encouraged the DOJ and FTC “to enforce the antitrust laws vigorously” and to “challenge prior bad mergers that past administrations did not previously challenge,” the White House said.

As head of the antitrust division, Kanter would decide whether to file lawsuits against companies such as Google, Amazon, Facebook, and Apple, all of which are facing congressional scrutiny, with Democrats proposing stronger antitrust rules that could break up Big Tech companies. Kanter’s work would complement that of Lina Khan, an antitrust scholar and Big Tech critic who became the FTC chair in mid-June.

“Kanter has the right expertise and holds the right values for the moment we are experiencing in tech and communications policy,” said Charlotte Slaiman, competition policy director at consumer-advocacy group Public Knowledge. “The public needs an assistant attorney general with both strong legal know-how and the requisite boldness to challenge gatekeepers and consolidated markets, including broadband providers and digital platforms. Jonathan Kanter fits that bill.”

Biden taking a long time on nominations

Kanter’s nomination must be approved by the Senate, and Slaiman urged senators to confirm Kanter quickly. The process will likely take a few months. Former President Donald Trump’s antitrust chief, Makan Delrahim, was nominated by Trump in early April 2017 and confirmed by the Senate on September 27 of that year. Khan was confirmed to the FTC a bit less than three months after Biden nominated her.

It took Biden about 180 days to name an antitrust chief. That’s the longest since then-President Jimmy Carter, who “took 168 days to nominate John Shenefield for the post,” Politico wrote earlier this month. The 168-day wait was previously the longest “in modern US history,” but in that case, “Shenefield had already taken over as acting antitrust head in May [of 1977],” Politico wrote.

Biden has been slow with other nominations, too. He needs to nominate a Federal Communications Commission member to break a 2-2 deadlock between Democrats and Republicans, and he still needs to pick an FCC chair. Jessica Rosenworcel has been the acting chairwoman throughout Biden’s term so far but has been hamstrung by the lack of a Democratic majority.

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