Tech Antitrust: The Weird Era Begins

On today’s episode of Decoder, we’re talking about antitrust policy and tech, which is at a particularly weird moment as we enter the second Trump administration.

A lot of tech policy is at a weird moment, actually, but antitrust might be the weirdest of them all — the pendulum has swung back and forth on antitrust policy pretty wildly over the past few years, and it’s about to swing again under Trump and his new appointees. To help me get a sense of these folks and what might be about to happen, I asked Leah Nylen, an antitrust reporter for Bloomberg and a leading expert on this subject, to come on the show and help break it all down. 

If you’re a Decoder listener, you know that the basic frameworks of antitrust in the US were more or less the same since Ronald Reagan took office in 1981, all the way through President Barack Obama and the first Trump administration.

But in the Biden administration, FTC Chair Lina Khan and DOJ antitrust chief Jonathan Kanter have taken a bold, aggressive approach to antitrust not really seen in this country in many of our lifetimes. And they’ve been pretty public about it — Kanter has been on Decoder twice in the past year to talk about this approach and what it means. After all, Amazon, Apple, and Meta are all facing major antitrust suits, and Microsoft is now under investigation, too. And then there’s Google, which is potentially staring down a full breakup after already losing one major antitrust suit, with a ruling in a second case about advertising due basically any day now. 

A lot of this regulatory pressure has been designed to avoid what I like to call the “Instagram problem,” where everyone wishes the governments of the world had prevented Facebook from buying Instagram in 2012, which might have allowed Instagram to turn into a real competitor to Facebook. But that didn’t happen.

For pretty much the entire 2010s, the tech industry grew and consolidated through mergers and acquisitions of startups at a breakneck pace, which is how you ended up with what some founders and venture capitalists called a “kill zone” around some companies — if a big tech company saw a startup that might compete with them, they would just buy it, and that would be that. This situation led to a lot of hearings, press releases, lawsuits, and podcast episodes — and ultimately it ended up with a Biden administration that wanted to do something to slow it down and perhaps even unwind some of it.  

Some of this enforcement has been so intense that companies have even devised creative end runs around the very appearance of acquiring another company. Look at Inflection AI: Microsoft didn’t acquire it; rather, it hired most of the company, licensed its tech, and installed the cofounder, Mustafa Suleyman, as the CEO of its new AI division. You can’t get blocked for an acquisition deal if, on paper, you haven’t acquire anything at all.

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But now, President-elect Donald Trump is returning to the White House in a month, and he’s already named his picks to replace Khan and Kanter. 

Trump’s pick to head the FTC, current Commissioner Andrew Ferguson, who pitched himself for the chairperson’s seat by promising to unwind Khan’s agenda. Overall, he’s extremely supportive of big business — except when it comes to big tech. Ferguson is all in on using the power of the FCC to somehow try and reign in big tech, especially for perceived political censorship, which is something Trump cares about very much. And Trump’s pick to run antitrust at the DOJ is Gail Slater, whose background makes her seems poised to keep some of the big antitrust cases alive.

This all leads to some deeply strange tension, as you’ll hear Leah really talk about. On the one hand, the incoming administration is fine with letting big companies become huge ones — but it might also support a potential Google breakup. Not because it believes Google behaved anticompetitively, but to punish Google for its perceived control over speech, which is something conservatives truly hate.