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Walking the fine line between antitrust and anti-tech

December 2, 2020, 8:14 PM UTC

Antitrust is always a hot-button issue, but 2020 has proved a red-letter year for the oversight of anticompetitive business practices. Most notably, the federal government has the giants of Big Tech squarely in its sights, with the likes of Google and Facebook currently facing a considerable amount of regulatory scrutiny.

It makes sense, then, that this year’s virtual edition of Fortune’s Brainstorm Tech conference would feature two of the leading legal minds in antitrust law, who gave their thoughts on the government’s approach to regulating these companies. Makan Delrahim, head of the Department of Justice’s Antitrust Division, and Katherine Forrest, a former U.S. District Court judge and partner at law firm Cravath, Swaine & Moore, joined Fortune’s Jeff John Roberts for the aptly titled panel, “Antitrust or Anti-Tech?”

When asked for her thoughts on the DOJ’s lawsuit against Google, Forrest said past cases—namely, the government’s landmark action against Microsoft more than two decades ago—have shown that “courts are able to deal with these very high-tech issues” despite concerns over whether they are “agile enough” to grasp the repercussions of fast-moving technological innovations. “Sometimes a judge may need additional assistance…[but] the courts can do this. They know how to deal with new innovations,” Forrest noted.

She added that since the Microsoft case, the courts have acknowledged the difference between a “monopoly position” and “monopoly maintenance.” While the first is achieved “through being the first innovator in an area,” the second involves taking actions that “maintain the monopoly”—an important distinction in determining whether a company is simply a “first mover” in its market, or deliberately anticompetitive.

Delrahim gave his perspective on whether or not Big Tech deserves its own dedicated government oversight agency—a specialist body, akin to the Federal Aviation Administration or the Food and Drug Administration, that would be charged with regulating America’s major tech firms. Delrahim expressed wariness at the idea, warning that it could lead to “inflexible rules that would end up benefiting [companies] with the greatest market and political power.” In turn, those powerful interests would “favor appointees to those specialized agencies that benefit them.”

“I believe that antitrust is law enforcement. It is not and should not be a function of picking winners and losers, but of protecting competition and free markets,” he said. “Creating a specialized agency could lead us into a path where we would actually diminish innovation.”

But Delrahim acknowledged Roberts’ assertion that antitrust legal proceedings are often too slow and ponderous at addressing the issues at hand. To that end, he floated the possibility of appointing more “judges with some expertise in the field” to quicken the pace at which cases proceed. 

Forrest, for her part, disagreed with that assertion. “I think the courts right now are up to the task,” she said, noting that “virtually all of the judges” in her own former district, the Southern District of New York, “have experience with antitrust cases.”

Delrahim ended the panel by reflecting on the legacy of the DOJ’s Antitrust Division under his leadership. He heralded his staff’s “bold” approach to investigating major tech conglomerates that now have an unprecedented amount of reach and influence.

“The approach we took—that this is legitimate, to look at it and not be afraid of the tech companies—opened up the ability of the staff to investigate,” he said. With a new administration set to take the reins in D.C. next month, Delrahim said he hopes that approach “continues, but is not overzealous.”