Speaker 1: Bloomberg Audio Studios, Podcasts, radio News. Hello and welcome to
Speaker 1: another episode of the Odd Lots podcast.
Speaker 2: I'm Joe Wisenthal and I'm Tracy Alloway.
Speaker 1: We got a special episode for listeners today.
Speaker 3: We do a very special episode. We had a live
Speaker 3: event over in Washington, d C. It was a very
Speaker 3: cool event.
Speaker 1: Joe, it was really fun. It's been a while, you know,
Speaker 1: we do live events, we do live recordings from time
Speaker 1: to time. It's been a while since we like put
Speaker 1: out a full evening of programming, a full show, if
Speaker 1: you will.
Speaker 3: Also our first show in DC.
Speaker 1: And our first live public show in DC. We've been
Speaker 1: wanting to do one for a while. We had a
Speaker 1: bunch of great guests. I actually really like going down
Speaker 1: to DC.
Speaker 3: Yeah, and it was a great crowd as well. I
Speaker 3: think we have the only audience that would devote two
Speaker 3: and a half hours on a Wednesday night to listening
Speaker 3: about the Jones Act and anti trust policy.
Speaker 1: Yes, that's right. It was sort of a late night too.
Speaker 1: It's sort of awkward timing because it was sort of
Speaker 1: dinner so people had to skip.
Speaker 3: But there was popcorn. It included with the tickets.
Speaker 1: It was popcorn anyway, so we're going to release all
Speaker 1: of the conversations that we had on that evening as episodes.
Speaker 1: But to start, we had a conversation about anti trust.
Speaker 3: We spoke to Andrew Ferguson. He's the new chair of
Speaker 3: the FTC for the Trump administration. Obviously, there's a lot
Speaker 3: of curiosity about how much continuity there may or may
Speaker 3: not be between antitrust under the Biden administration, under Lena Kahn,
Speaker 3: who we've also spoken to on the podcast, and what
Speaker 3: this new era might look like. So it was really
Speaker 3: interesting to sit down with him and get a better
Speaker 3: sense of it.
Speaker 1: That's right, and it's got pretty interesting implications really for
Speaker 1: multiple reasons. I mean, if you recall, one of the
Speaker 1: themes sort of when the election happened, was a lot
Speaker 1: of excitement on Wall Street because of a perception that
Speaker 1: there would be a lot of mergers in deals would
Speaker 1: get a green light that they would be going forward
Speaker 1: the new era of deal making activity. Incidentally, the new chair,
Speaker 1: Andrew Ferguson, kept the merger guidelines that were put in
Speaker 1: place under his predecessor, but they're clearly going to be differences.
Speaker 1: There are areas of alignment, There are areas of differences,
Speaker 1: and so we talked to Andrew about sort of what
Speaker 1: a conservative or what a maga vision of antitrust might
Speaker 1: look like.
Speaker 3: Maga m and A was my suggestion, I think, and
Speaker 3: he took it. So all right. Here it is our
Speaker 3: live conversation with the new FTC chief, Andrew Ferguson.
Speaker 1: Thank you so much for coming. I'm really annoyed actually,
Speaker 1: because one of your lawyers gave me like the perfect
Speaker 1: first question for the podcast today. I was like, Oh,
Speaker 1: this is amazing, and then you sort of walked it back.
Speaker 1: I don't exactly know what happened, so that dulled it
Speaker 1: a little bit. But anyway, apparently in court today one
Speaker 1: of your lawyers said, we need a pull for this
Speaker 1: case against Amazon because we don't have the resources and
Speaker 1: we can't pay for transcripts. Like, oh, this is an
Speaker 1: amazing first question for Andrew, and then he walked away.
Speaker 1: Is there a constraint though, between this impulse and we'll
Speaker 1: get into it, you know, in terms of headcount and
Speaker 1: your desire for what you know looks like going to
Speaker 1: be a sort of vigorous new antitrust uh enforcement approach.
Speaker 2: Thank you for having me a lot to unwrapped there. Yeah,
Speaker 2: first on constraints. No, okay, I've got the people I
Speaker 2: need to protect Americans from monopolies, to protect them from fraud.
Speaker 2: And you know, no, I don't think anyone in Washington
Speaker 2: has taken sort of the threat that big tech poses
Speaker 2: to American consumers more seriously than I have. When President
Speaker 2: Trump announced my appointment, this is one of the things
Speaker 2: he said he really cared about was taking the threats
Speaker 2: that big tech pose to American consumers very seriously. There,
Speaker 2: I will throw every re resource the agency has at
Speaker 2: prosecuting cases against big tech that we've got going. So unequivocally, No,
Speaker 2: there are no resource constraints on protecting Americans from monopolies
Speaker 2: and fraud.
Speaker 1: Can you explain what happened today?
Speaker 2: I think a lawyer had a bad day in court.
Speaker 2: He was wrong. He filed a letter almost immediately after
Speaker 2: saying I was wrong. We don't have resource constraints, and
Speaker 2: we are ready to prosecute this case on whatever timeline
Speaker 2: the court wants for us. So we're ready to go.
Speaker 3: Okay, but presumably there is this broader drive to streamline
Speaker 3: some agencies yours included at the same time that you
Speaker 3: have these really lofty targets that you're trying to reach.
Speaker 3: I just saw the very good Bloomberg story out today
Speaker 3: about the Microsoft probe. This is a huge company that's
Speaker 3: going to take a lot of effort, a lot of resources. Again,
Speaker 3: presumably you're doing this with less resources than you had,
Speaker 3: say a year ago.
Speaker 2: At the FTC, I would not presume that. Look, the
Speaker 2: Americans voted for major reform. President Trump ran on major
Speaker 2: reform and he's giving it to him. And government should
Speaker 2: not be bigger than is necessary to deliver the services
Speaker 2: that Americans need to protect Americans from the problems that
Speaker 2: Americans have. The FTC we are engaged in the streamlining process.
Speaker 2: The goal is to maximize Americans' returns on their taxpayer dollars.
Speaker 2: When they send their money off to Washington, they expect
Speaker 2: their government to do a lot with that money, and
Speaker 2: that the government shouldn't be any bigger than is necessary
Speaker 2: to do those tasks. And so at the FTC, we've
Speaker 2: got the resources we need to protect Americans from fraudam monopoly.
Speaker 2: And look, you know, no government official in history has
Speaker 2: ever said, no, I want fewer resources. Which is why
Speaker 2: the President's efficiency agenda is so important, because government will
Speaker 2: always keep sucking up resources. The goal here is to
Speaker 2: maximize the return on investment for American taxpayers, and that's
Speaker 2: what we're doing the FTC. Okay, So what.
Speaker 3: Does Trump actually think about antitrust? Because he has a
Speaker 3: lot of opinions, Sometimes it's hard to get a handle
Speaker 3: on what exactly those opinions are. Sometimes he seems to
Speaker 3: contradict himself. You know, a lot of people think he's
Speaker 3: pro business, but at the same time he has talked
Speaker 3: about antitrust and competition and the power of the big
Speaker 3: tech platforms as you just mentioned. What does he tell
Speaker 3: you about how he thinks of all of this.
Speaker 2: I think President Trump is pro innovation, pro growth, and
Speaker 2: in that sense, he is pro business. But I'm going
Speaker 2: to push back a little bit on the way you
Speaker 2: frame the question. I don't think that there's any inconsistency
Speaker 2: with being pro business and favoring vigorous anti trust enforcement.
Speaker 2: Those two have to go hand in hand. Look, I
Speaker 2: like most Republicans, and I think like most Americans and
Speaker 2: pro free markets. Anti trust is how we keep our
Speaker 2: markets free markets that are infected with monopoly, that are
Speaker 2: infected with collusion, that are infected with foreclosure. These are
Speaker 2: not free. They move value from consumers from innovative businesses
Speaker 2: to giant monopolies, who then are focused mostly on protecting
Speaker 2: those monopolies rather than innovating, rather than growing, rather than
Speaker 2: coming up with the next great idea that changes americans lives. So,
Speaker 2: you know, I think President Trump up his pro American markets.
Speaker 2: He's pro business, but that is easily reconcilable with favoring
Speaker 2: vigorous anti trust enforcement. And President Trump, you know, he's
Speaker 2: been president for four years before this, we sort of
Speaker 2: have seen what President Trump's anti trust agenda looks like.
Speaker 2: And he favors vigorous enforcement. He favors following the law,
Speaker 2: and he favors clarity and certainty for people who have
Speaker 2: to participate in these markets.
Speaker 1: Right, no, no, no, no, no, no, a live recording, So
Speaker 1: hold on, hold, hold on, no, it's a live recording.
Speaker 1: It's a live recurd.
Speaker 2: President Trump spent four years as the victim of endless lawfare.
Speaker 2: He's president of the United States. Yeah, all right, it's
Speaker 2: DC audience, I get it. He has spent the last
Speaker 2: several months picking people so in his cabinet or an
Speaker 2: agencies like mine who are focused on enforcing the laws
Speaker 2: as they are written and carrying out this agenda.
Speaker 1: All right, let me ask you, all right, Uh, you
Speaker 1: mentioned streamlining, uh the FTC. One way that you could
Speaker 1: imagine streamlining from a government's perspective is that we don't
Speaker 1: need an FTC. And obviously you have your counterparts at
Speaker 1: the Department of Justice. You yourself have talked about the
Speaker 1: sort of philosophy of the sort of disputing the premise
Speaker 1: of sort of these independent agencies. Why do we need
Speaker 1: two separate antitrust uh enforcement agencies?
Speaker 2: So I think we can get to independence in a minute.
Speaker 2: But I think the FTC sort of adds value to
Speaker 2: the enforcement regime regime because it combines the consumer protection
Speaker 2: and the anti trust enforcement program in a single agency,
Speaker 2: and those two can cross pollinate and they protect consumers
Speaker 2: more fully than you know, just a singular anti trust
Speaker 2: enforcement necessarily would.
Speaker 1: Uh.
Speaker 2: And the you know, the two missions sort of like
Speaker 2: learn from each other. The anti trust people when they're
Speaker 2: doing investigations, they can find problems that violate the consumer
Speaker 2: protection laws, and then the FTC can continue those investigations
Speaker 2: with the other side of the house. So I think
Speaker 2: there's some benefits to that. But you know, there's Also,
Speaker 2: I think some benefits in certain circumstances to having multi
Speaker 2: member agencies with people from both parties. I mean, look,
Speaker 2: if you have an agency that is exceeding the law,
Speaker 2: abusing the companies that are purports to regulate, it's helpful
Speaker 2: for markets, for courts, for litigants, for government transparency to
Speaker 2: have people in the other party pointing this out and
Speaker 2: saying it in dissents. Like you know, I wrote four
Speaker 2: hundred plus pages of descents during my time as a
Speaker 2: Minority commissioner. I think that that adds value. But I
Speaker 2: think that the FTC's particular value add is you combine
Speaker 2: the two missions, consumer protection and antitrust in a single house,
Speaker 2: and they both sort of like help reinforce the other.
Speaker 3: I know it's early days, but one of the things
Speaker 3: you've done so far is you said you were going
Speaker 3: to maintain the merger guidelines from the Biden administration, and
Speaker 3: some people were really surprised about that. You said that
Speaker 3: you thought stability is good for enforcement agencies. I think
Speaker 3: maybe some some people are confused because this doesn't necessarily
Speaker 3: seem to be an administration that is obsessed with stability
Speaker 3: or continuity. Walk us through the thinking there. Why did
Speaker 3: you commit to those particular guidelines, especially given the you know,
Speaker 3: they got a lot of criticism from multiple sides of
Speaker 3: the aisle.
Speaker 2: Yeah. So we've had various iterations of the merger guidelines
Speaker 2: dating back to the sixties and then when the FTC
Speaker 2: and DJ started doing it together in the nineteen eighties.
Speaker 2: You know, we tend to have guidelines for pretty long
Speaker 2: periods of time. Sometimes there are sort of iterative changes
Speaker 2: made to those guidelines over the course of time, but
Speaker 2: a complete rewrite of the guidelines relatively rare, and it happens.
Speaker 2: You know, we had the guidelines we written in twenty ten.
Speaker 2: But the general principle has been presidents of one party
Speaker 2: maintain the guidelines from the previous They may add here
Speaker 2: and there. They provide commentaries on those guidelines to sort
Speaker 2: of explain to business how you know that current administration
Speaker 2: understands the guidelines. But a complete read vamp is rare.
Speaker 2: And if we get into this process where every single
Speaker 2: time a new administration comes in they jettison the guidelines,
Speaker 2: two things happen. First, the agencies spend all their time
Speaker 2: writing the guidelines. I mean, the previous administration of jettison
Speaker 2: the twenty ten guidelines and spent like two years having
Speaker 2: to write this one. They were only effective for barely
Speaker 2: a year of the last administration. If we get into
Speaker 2: this process where every four years were yanking and rewriting,
Speaker 2: it's all the agency you're going to do. Number one.
Speaker 2: Number two, the guidelines will become basically meaningless if they
Speaker 2: just are like one party's statement of its view of
Speaker 2: anti trust policy. Courts won't follow them anymore if they
Speaker 2: think that they're just openly partisan. Regulated entities won't rely
Speaker 2: on them to plan. You know, businesses can't just plan
Speaker 2: into your cycles. They have to plan longer than that.
Speaker 2: And if the year of the view that every election
Speaker 2: runs the risk of the guidelines being yanked, the guidelines
Speaker 2: just become meaningless. And third, you know, there definitely were
Speaker 2: parts of the guidelines that were you know, departures from
Speaker 2: the twenty ten guidelines, but they generally are relatively well aligned.
Speaker 2: They're built on case law, they preserve a lot of
Speaker 2: the PC from previous guidelines, and I think just throwing
Speaker 2: them all out all at once means A the agencies
Speaker 2: are going to devote tremendous resources to rewriting them, and
Speaker 2: b everyone will remain very uncertain about how the agencies
Speaker 2: feel about it. And finally, you know, a lot has
Speaker 2: been written about the sort of effects of the guidelines.
Speaker 2: They're guidelines at the end of the day. They aren't law.
Speaker 2: They're supposed to be explanations to the public about how
Speaker 2: the agencies generally understand the merger program going forward. But
Speaker 2: the most important feature of anti trust enforcement in the
Speaker 2: United States isn't the guidelines. It's the commitment of particular
Speaker 2: anti trust enforcers to following the laws is written, providing
Speaker 2: certainty and clarity about how they understand the law. And
Speaker 2: then when you go to court bringing the cases that
Speaker 2: you think that you can win, and when you can't
Speaker 2: win the cases, get the hell out of the way
Speaker 2: and let the mergers close.
Speaker 1: So one of the things that obviously came up during
Speaker 1: under the last DEPTC chair this idea of like, okay,
Speaker 1: there's more than the consumer welfare standard that should be evaluated.
Speaker 1: One nice thing about conceiving of consumer welfare narrowly in
Speaker 1: terms of price a well, people like cheap things. But also,
Speaker 1: you know, it creates a certain law, it eliminates a
Speaker 1: certain subjectivity. You could plug. Okay, this is what's gonna
Speaker 1: happen to market share companies. You can plug them into
Speaker 1: some economist model. I don't know if those models actually
Speaker 1: work or not, but theoretically spit out some answer where
Speaker 1: we get lower prices, and then it's like, okay, this
Speaker 1: is this is good or bad? When you start broadly
Speaker 1: defining consumer welf welfare, rethinking that like, first of all,
Speaker 1: what is that term? What do you when you hear
Speaker 1: the consumer welfare standard? What does that mean to you?
Speaker 1: Does it mean more than prices for one thing?
Speaker 2: In order to talk about this, I want to get
Speaker 2: a little bit into history. Is sure?
Speaker 3: Do like history?
Speaker 2: Yeah, so you said.
Speaker 1: So.
Speaker 2: Congress passes its first competition law in eighteen ninety, the
Speaker 2: Sherman Act. I don't know how many of you read
Speaker 2: the Sherman Act, but the operative provisions of the Sherman
Speaker 2: Acts Sections one, in sections two, it's like fifty words.
Speaker 2: Like the most important provisions of American ads trust law
Speaker 2: are fifty words. Adopted in eighteen ninety, the Congress has
Speaker 2: not changed effectively since then. Then, in nineteen fourteen, they
Speaker 2: passed the FTC Act, which both creates my Agency and
Speaker 2: also creates a new antitrust provision that prohibits unfair methods
Speaker 2: of competition, and then a couple months later it passes
Speaker 2: the Clayton Act. And the Clayton Act is really important
Speaker 2: because that's the law that prohibits mergers that promote tend
Speaker 2: to create a monopoly or injured competition. So by nineteen fourteen,
Speaker 2: and then with an important amendment called the Robinson Patman
Speaker 2: Act in the nineteen thirties, our anti reslaws are basically
Speaker 2: set like the operative provisions for merger purposes of Section
Speaker 2: seven of the Clayton Act and sections one and two
Speaker 2: of the Sherman Act are basically unchanged. They were originally adopted.
Speaker 2: For decades, courts kind of cast about for a theory
Speaker 2: about how to apply the anti trust laws. So we
Speaker 2: know that the anta trust laws are about competition and
Speaker 2: protecting competition, but that doesn't tell you a whole lot.
Speaker 2: Does that mean like making sure that there are a
Speaker 2: particular number of competitors in the marketplace. Does it mean
Speaker 2: competitors have to do particular things and we don't care
Speaker 2: how many there are. Does it mean that we care
Speaker 2: about the economic effects of monopoly. Doesn't mean we care
Speaker 2: about the political effects of monopoly? And this can matter
Speaker 2: because you can imagine, you know, the existence of some
Speaker 2: monopoly somewhere that ends up keeping prices low, or of
Speaker 2: a duopoly but wield unbelievable economic power. Or you can
Speaker 2: imagine businesses that aren't true monopolists, but they have tons
Speaker 2: of economic power, or of political power. I'm sorry. And
Speaker 2: so courts up through the nineteen fifties and sixties were
Speaker 2: just sort of casting about, looking for some standard they
Speaker 2: could articulate about when the anti trust laws are violated.
Speaker 2: And by the fifties or sixties, it was very difficult
Speaker 2: for anyone to predict what any given court was going
Speaker 2: to say about any given transaction or conduct. You had
Speaker 2: his you know, you could have premised it on what
Speaker 2: the judges were having for breakfast when they were deciding
Speaker 2: the cases, and that was as likely a predictor of
Speaker 2: outcomes as anything else. Then this guy who you you know,
Speaker 2: a lot of people in this audience, if you know
Speaker 2: it's as sort of wonky as you say it is,
Speaker 2: have probably heard of for other reasons. Who's a professor
Speaker 2: at Yal's name was Robert Bork, and he writes a
Speaker 2: book called The Anti Trust Paradox and the the you know,
Speaker 2: the subheading of the book is a policy at war
Speaker 2: with itself, And the position he articulates is the courts
Speaker 2: are using anti trust to accomplish all sorts of things
Speaker 2: that don't have anything to do with economic injuries, politics,
Speaker 2: labor unions, all sorts of stuff that just don't have
Speaker 2: anything to do with it. It's basically a choose your own
Speaker 2: adventure legal regime. It makes no sense, and it's actually
Speaker 2: injuring economic growth. Growth. The only thing the anti trust
Speaker 2: laws should care about, Judge Borck said, are the welfare
Speaker 2: is the welfare of consumers. So he articulates this few
Speaker 2: in the seventies, and by nineteen seventy five, in this
Speaker 2: famous case called Writer, the Supreme Court is citing Judge
Speaker 2: Bork and saying the antitrust laws are a prescription for
Speaker 2: consumer welfare. Okay, when Judge Bork writes about consumer welfare,
Speaker 2: he says, look, low prices, that's important for consumer welfare.
Speaker 2: High output, that's important. Other things are important too, like
Speaker 2: the promotion of future competition, the protection of innovation, product quality.
Speaker 2: All sorts of things sort of fit within consumer welfare.
Speaker 2: But what we care about are economic injuries inflicted on
Speaker 2: participants in marketplaces, not about stuff that isn't related to
Speaker 2: sort of economic welfare of market participants. At the same
Speaker 2: time this is happening, something else is happening in our system.
Speaker 2: We have this sort of like economic libertarianism on the
Speaker 2: right that sort of attaches itself to the consumer welfare standard,
Speaker 2: and it has certain supposition like ideological suppositions about markets.
Speaker 2: Markets always correct themselves as one of the suppositions. Professor
Speaker 2: at NYU, Daniel Francis Bright Young anti trust scholars written
Speaker 2: a lot about this, highly recommend him that government intervention
Speaker 2: is almost always worse than anything happening in markets, even monopolies,
Speaker 2: and so we should always preference against government intervention, even
Speaker 2: if it's to correct market failures and monopolies. And a
Speaker 2: strong deference to c suite decision making on the view
Speaker 2: that they understand what should work best in a marketplace,
Speaker 2: and government ought to be hands off and deferential to
Speaker 2: c suite decision making. These two things right alongside each other,
Speaker 2: and so by the nineteen nineties, consumer welfare has basically
Speaker 2: been reduced to two questions. Is the transaction or conducted
Speaker 2: issue likely to increase price in the shorter intermediate term
Speaker 2: or reduce outcome in the shorter intermediate term. But that
Speaker 2: isn't really what consumer welfare is about. Consumers can suffer
Speaker 2: all sorts of injuries that aren't just about short term
Speaker 2: prices or short term output. A loss of innovation is
Speaker 2: a huge injury to consumers. A loss of product quality
Speaker 2: huge injury consumers. But a lot of courts that started
Speaker 2: to shift away and focus on the extremely qualitative question
Speaker 2: about price and output, which also led to a deference
Speaker 2: to econometrics and to economists and anti trust cases. Sorry
Speaker 2: you make quantitative quantitative? Sorry, thank you, thank you. That's
Speaker 2: right quantitative, which also ends up making anti trust cases
Speaker 2: very expensive because everyone has to hire an army of
Speaker 2: economists to talk about the case, makes it very difficult
Speaker 2: for judges to decide these cases because the way these
Speaker 2: often go is each side has their own army of economists,
Speaker 2: identically trained, identical schools, fancy credentials on both sides, making
Speaker 2: exactly opposite arguments about the same number, often predictive arguments,
Speaker 2: and a judge untrained in any of this. I mean,
Speaker 2: you know, I don't know how much how many lawyers
Speaker 2: are on the room, but the average federal district judge
Speaker 2: in the United States was like a local prosecutor or
Speaker 2: a local defense attorney or a member of the local
Speaker 2: bar has probably never dealt with anti trust in his
Speaker 2: or her life before that case. And now you've got
Speaker 2: MIT and Stanford trained economists having a really vicious dispute
Speaker 2: about identical facts, and the judge is supposed to decid
Speaker 2: The judge kind of goes, I don't know, it seems
Speaker 2: like a wash, but it makes these cases long and expensive,
Speaker 2: and so that is. You know, in my view, the
Speaker 2: consumer welfare standard encompasses injuries to participant economic injuries to
Speaker 2: participants in marketplaces. It includes consumers, obviously, it also includes laborers.
Speaker 2: The Supreme Court has understood the antitrust laws to protect
Speaker 2: laborers as sellers of labor to the same extent it
Speaker 2: protects purchasers of goods. You know, the sort of fixation
Speaker 2: on short and intermediate term price and output effects isn't
Speaker 2: actually what consumer welfare was ever understood to me. And
Speaker 2: it was supposed to encompass a broader range of injuries
Speaker 2: to marketplace participants, but it got shrunk largely because of
Speaker 2: ideological views about markets.
Speaker 3: Thank you for that history. That was useful, And Joe
Speaker 3: and I keep joking that we need to we need
Speaker 3: to add a bort clocks into our monopolies question library.
Speaker 2: But I guess, well, actually I didn't really answer your
Speaker 2: question because the question is what I felt like.
Speaker 3: Yeah, I was building up to ask politely, but yeah,
Speaker 3: go on.
Speaker 2: So then we get to President Trump's first administration, and
Speaker 2: I'll just give a little background on myself. I was
Speaker 2: a private practicing lawyer. I clerked off law school and
Speaker 2: was a private practicing lawyer here at DC firms doing
Speaker 2: anti trust work. And my parents back in rural Virginia
Speaker 2: used to joke that I was a pro trust lawyer
Speaker 2: because I represented the businesses who were resisting anti trust suits.
Speaker 2: And then I went and clerked on the Supreme Court
Speaker 2: for Justice Thomas during the twenty sixteen election, and I
Speaker 2: would bike into work from Old Town and listen to
Speaker 2: the news or podcast on the way in, and was
Speaker 2: doing this as sort of a like lawyer who had
Speaker 2: thought a lot about anti trust as a practitioner, but
Speaker 2: very little about anti trust as a policy. You know,
Speaker 2: when you're a practicing lawyer, you think about doctrines. How
Speaker 2: can I help my client with these doctrines, you don't
Speaker 2: go one step up and sort of think about the policy.
Speaker 2: And if I'm driving into work, I'm listening to President
Speaker 2: Trump calling for more vigorous anti trust enforcement, you know,
Speaker 2: pretty vocifically on the campaign trail, and I'm writing in
Speaker 2: I'm going, what's happening? Like A We're talking about anti
Speaker 2: trust in a presidential campaign? This is very strange. And
Speaker 2: two a Republican calling for more vigorous anti trust enforcement.
Speaker 2: And so when President Trump takes office, he's not calling
Speaker 2: for a revolution in the consumer welfare standard like some
Speaker 2: of his successors did. He wasn't saying, you know, get
Speaker 2: rid of the consumer welfare standard. But he hires anti
Speaker 2: trust enforcers who take seriously the idea that consumer welfare
Speaker 2: isn't just about price and output and what a bunch
Speaker 2: of economists say. It's about consumers participation in marketplaces and
Speaker 2: protecting them from short term and long term injuries and
Speaker 2: laborers as marketplace participants. And so, you know, a lot
Speaker 2: of folks have talked, not incorrectly about the Biden administration
Speaker 2: bringing lots of lawsuits against big tech. A lot of
Speaker 2: people have talked about the Google search suit, which is
Speaker 2: in the remedy phase right now, where the United States
Speaker 2: is asking to split Chrome off for the rest of Google.
Speaker 2: President Trump brought that case. President Trump brought that case
Speaker 2: in twenty twenty, and it was litigated during the Biden administration.
Speaker 2: But President Trump brought that case. The biggest attempted block
Speaker 2: of a vertical merger in American history up to that
Speaker 2: point was brought by President Trump and the AT and
Speaker 2: T Time Warner case, and the Meta case that's going
Speaker 2: to trial in my agency in just a month that
Speaker 2: says that Meta's acquisition of Instagram and WhatsApp violated the
Speaker 2: anti trust laws was brought by President Trump's administration. So
Speaker 2: sort of the reconsideration of consumer welfare to encompass a
Speaker 2: broader range of consumer injuries than just price and output
Speaker 2: starts with President Trump. Now President Biden comes in and
Speaker 2: picks my successor, who is an extremely talented anti trust thinker,
Speaker 2: but was of the view that the consumer welfare standard
Speaker 2: ought to be discarded entirely and ought to be replaced
Speaker 2: with a far more open ended understanding of the anti
Speaker 2: trust laws that protect which she calls the competitive process,
Speaker 2: but is more than just economic injuries to laborers and consumer. It's,
Speaker 2: you know, the political effects of consolidation, all sorts of
Speaker 2: downstream non economic effects, and that consolidation itself is the enemy,
Speaker 2: even irrespective of the relationship of that consolidation to sort
Speaker 2: of economic injuries on market participants. And that was basically
Speaker 2: a proposed revolution. A lot of people call this neo Brandisianism.
Speaker 2: Brandeis was a very famous Supreme Court justice who articulated
Speaker 2: a sort of anti consolidation view of the anti trust
Speaker 2: laws in the first half of the twentieth century, and
Speaker 2: they proposed sort of ripping the anti trust laws out
Speaker 2: of the consumer welfare standard and opening up a much
Speaker 2: broader range of interests. I think sort of two things
Speaker 2: to think about there. The first is this is basically
Speaker 2: go back to the fifties and sixties before Bork's book.
Speaker 2: The rationale was that price and out part are too
Speaker 2: narrow a consideration on which to base an anti trust regime.
Speaker 2: And the answer to that is it's true. But Bor
Speaker 2: didn't actually say just limited to price and output. He
Speaker 2: understood consumer welfare standard to encompass consumers in all of
Speaker 2: their aspects of participating in markets, including how things will happen. Further,
Speaker 2: in the future with innovation and product quality. And you know,
Speaker 2: I think if you measure the previous anti trust regime
Speaker 2: by whether it achieved its neo Brandisian revolution, the answer
Speaker 2: is it definitely did not. Every court in the country
Speaker 2: still applies the consumer welfare standard.
Speaker 3: I prefer hipster anti trust to neo Brandisian. But I mean,
Speaker 3: what what should we call your brand of anti trust?
Speaker 3: Give us like a catchy name like hipster anti trust,
Speaker 3: like anti woke anti trust, like maga m and a like,
Speaker 3: give us something.
Speaker 2: Yeah, you can call it maga anti trust if you want.
Speaker 2: I think there are two things I would say. The
Speaker 2: first is it's conservative anti trust in the sense that
Speaker 2: you know, we aren't behold into sort of libertarian ideology
Speaker 2: about markets. We take markets actually as they actually are.
Speaker 2: We take consumers as they actually are, how they actually
Speaker 2: participate in markets. We take laborers as they actually are,
Speaker 2: and we take very seriously that you know, consumers and
Speaker 2: laborers suffer in markets short of things that just affect
Speaker 2: short term price and output. And that the loss of
Speaker 2: innovation even if you can't measure it the way, or
Speaker 2: the loss of choice or product quality, even if you
Speaker 2: can't measure it the way that an economist would measure
Speaker 2: price and output still matter to consumers and still matter
Speaker 2: to antitrust. And I think the second is, you know,
Speaker 2: I really do see my view as just like a
Speaker 2: cop on the beat, you know. I think the other
Speaker 2: thing that was unusual about the previous administration was that
Speaker 2: it had a really hardcore focus on x ANTI regulation.
Speaker 2: You know, the FTC under my predecessor passed a record
Speaker 2: shattering number of x anti rules for an agency that
Speaker 2: doesn't pass very many x anty rules, including competition rules,
Speaker 2: which it had not done in a long time, arguably
Speaker 2: had in my view, had never lawfully done. And you know,
Speaker 2: the only one that we passed has been vacated by
Speaker 2: the courts. But you know, it was not just a
Speaker 2: sort of neo Brandisian revolution. It was an emphasis on
Speaker 2: x ANTI regulation. And my view is, as a cop
Speaker 2: on the beat, if we really vigorously enforce the anti
Speaker 2: trust laws, we avoid the need for regulation, because regulation
Speaker 2: is what you have to do when monopolies have totally
Speaker 2: consumed a market. I mean, all of us live in
Speaker 2: some form of a utility monopoly. Grew up in Virginia.
Speaker 2: We have a giant electric utility monopoly, it is heavily, heavily,
Speaker 2: heavily regulated directly by the state legislature. But if you
Speaker 2: vigorously enforce your and you know, utility monopolies, they're a
Speaker 2: little different because of the sort of space constraints on
Speaker 2: wires and cables and things like that. But if you
Speaker 2: take the anti trust laws very seriously and you really
Speaker 2: vigorously enforce them, and you don't pull your punches because
Speaker 2: of ideological suppositions about markets, you can avoid the need
Speaker 2: for ex anti regulation because vigorous market competition ensures monopolies
Speaker 2: do not rise. Anti trust enforcement ensures vigorous market competition.
Speaker 2: If you have market competition, you don't need heavy regulation
Speaker 2: because you don't have giant monopoly problems.
Speaker 1: So I take I understand this point that you don't
Speaker 1: need as much regulation if you take antitrust uh seriously.
Speaker 1: There does seem to, however, be maybe you dispute this
Speaker 1: this tendency towards centralization in the modern internet economy, and
Speaker 1: you know, like it's very helpful that everyone you know
Speaker 1: more or less goes to one place to share a
Speaker 1: photo something like Instagram, or one place to review books,
Speaker 1: et cetera. Like this is just one place to trol
Speaker 1: on Twitter like I do. How do you like? Actually
Speaker 1: that's a joke. I never troll. Sorry I slipped. I
Speaker 1: slipped there, Tracy, I slip for a second. I do
Speaker 1: not troll on Twitter?
Speaker 2: But how do you like?
Speaker 1: I guess what I'm trying to understand is many people
Speaker 1: on both the right and the left feel this in
Speaker 1: two of sense that there's a tremendous amount of power
Speaker 1: being accrued in these gigantic tech platforms. And to your point,
Speaker 1: like antitrust and the FTC seats specifically, how do you
Speaker 1: measure when something is uncompetitive in a deal? Because again,
Speaker 1: the nice thing about prices, et cetera is like you
Speaker 1: can measure it, So like, what does it actually look
Speaker 1: like to have a sort of more competitive internet?
Speaker 2: Yeah, And the additional layer of complication for a lot
Speaker 2: of the Internet platforms that we all use is that
Speaker 2: we use them without exchanging money for them, Right, It's like,
Speaker 2: you know, Facebook X, not premium Google Search. You know,
Speaker 2: we don't. We don't hand over money in exchange for
Speaker 2: using those services. That doesn't mean that there aren't ways
Speaker 2: to measure a loss of competition. So like, you know,
Speaker 2: I'll just use an example, the position that the commission
Speaker 2: is articulated in meta, which is, you know, purely, purely public.
Speaker 2: But one of the ways you can measure a loss
Speaker 2: of competition is if product quality is degraded without a
Speaker 2: meaningful competitive impact to the company that's degrading product quality. So,
Speaker 2: for example, the FTC has alleged, and you know, we've
Speaker 2: got a trial coming up on this, but the FTC
Speaker 2: has alleged in meta, for example, that Facebook was able
Speaker 2: to massively increase the ad load on Facebook without losing
Speaker 2: any consumers, which meant that they were able to degrade
Speaker 2: the quality of their product, and consumers didn't have anywhere
Speaker 2: else to go, and so they just sort of stayed.
Speaker 2: And that you know, the anti trust laws and a
Speaker 2: sort of fully formed understanding.
Speaker 1: I guess the question, I guess, And that makes a
Speaker 1: lot of sense to me. On the other hand, how
Speaker 1: much is that about some prior failure of antitrust versus
Speaker 1: this tendency on the Internet for everyone to be while
Speaker 1: their friends are and the sort of naturalization network effects exactly.
Speaker 2: Yeah, so you know, network effects are sort of a
Speaker 2: natural part of the Internet environment. Yeah, and the anti
Speaker 2: trust laws do not actually forbid monopoly itself. They don't
Speaker 2: the courts of go and out of their way over
Speaker 2: and over for decades to say, the acquisition of a
Speaker 2: monopoly naturally and lawfully does not violate the anti trust laws.
Speaker 2: You know, if someone is just really good at something
Speaker 2: and way better than everyone else, they sort of will
Speaker 2: naturally develop monopoly in that because people will prefer that
Speaker 2: product or service. What you can't do is maintain your
Speaker 2: monopoly from things unrelated to your skill or the quality
Speaker 2: of your product, or sort of dumb luck. And you know,
Speaker 2: in terms of like you know, failures of previous antitrust regimes.
Speaker 2: Let me just touch on that a minute. Sure, let's
Speaker 2: just take Google Search for example. A lot of the
Speaker 2: Google Search case is a very traditional Section two case.
Speaker 2: It's tying, it's ordinary monopolization conduct. It doesn't propose breaking
Speaker 2: sort of our standards. It is a very normal thing.
Speaker 2: And this case, the idea for this case is sort
Speaker 2: of sat around for a long time. But there are
Speaker 2: political decisions made by antitrust inform for serves in previous
Speaker 2: administrations not to do it. But those are political decision,
Speaker 2: those are political economy decisions driven either by some combination
Speaker 2: of ideology or a prudential you know, preference against government intervention,
Speaker 2: even if you think you can win the case, because
Speaker 2: you know, you don't want to be the guy that
Speaker 2: kills the goose laying the golden egg. But you know,
Speaker 2: I think we need to be realistic about it. There
Speaker 2: there were moments during the creation of the Internet and
Speaker 2: during the sort of rise of these platforms where they
Speaker 2: made decisions that even under ordinary anti trust theories would
Speaker 2: have said, hey, this is potentially a problem. I mean,
Speaker 2: for example, the FTC's theory and meta was that the
Speaker 2: acquisition of Instagram was an anti trust violation, but the FTC,
Speaker 2: you know, did not block the merger. My own view is,
Speaker 2: I don't think that we should say if a monopoly
Speaker 2: arose in any market, in any market, Internet platforms or
Speaker 2: any of the other goods and services we use every day,
Speaker 2: we shouldn't. Let you know, enforcement declinations in the past
Speaker 2: that led to the creation of monopoly be a reason
Speaker 2: not to conf front the monopoly today, because that's basically
Speaker 2: just the sunk cost fallacies like oh, well, we already
Speaker 2: did this once, Like you know, if they have the
Speaker 2: monopoly now, it is what it is. My view is, no,
Speaker 2: if we have monopolies and they're being maintained illegally, no
Speaker 2: matter how they were formed, no matter who was asleep
Speaker 2: at the wheel when their formation came about. My job
Speaker 2: is an interest enforcers to do something about that if
Speaker 2: I think I can win in court, and if I
Speaker 2: don't think I can win in court, I need to
Speaker 2: leave them alone.
Speaker 3: Okay, So, since we're on the topic of the Internet
Speaker 3: big tech platforms, one of the things you've talked about
Speaker 3: is potentially going after censorship on these platforms. Can you
Speaker 3: connect that to You just gave us a great history
Speaker 3: of the consumer welfare standard and how it's changed through time.
Speaker 3: Connect that to the consumer welfare standard, whether it's you know,
Speaker 3: a bork esque definition or something more broad.
Speaker 2: Sure, can I resist your premise lightly? Of course, I
Speaker 2: don't want to go after censorship. Okay. The government is
Speaker 2: not supposed to go after censorship qua censorship because we're
Speaker 2: not the speech police. I do care about market power,
Speaker 2: and if market power enables a business to mistreat its
Speaker 2: consumers or to degrade the quality of its product by,
Speaker 2: for example, throwing people off of their platform and suffering
Speaker 2: no competitive consequences whatsoever, that antitrust cares about not the
Speaker 2: censorship itself, the market power that makes it possible to
Speaker 2: mistreat consumers without suffering competitive consequences. I just give you
Speaker 2: some background this twenty twenty. I am Mitch McConnell's lawyer.
Speaker 2: I'm sitting in my Senate office. The George Floyd protests
Speaker 2: are sort of at their peak, and I start getting
Speaker 2: calls from the gcs of Giant Fortune one hundred businesses
Speaker 2: and business groups, and I pick up the phone and
Speaker 2: they say, hey, cops are really racist. We the business
Speaker 2: community want you to pass a bunch of police reform bills.
Speaker 2: And you know, I was a sort of like conservative
Speaker 2: that had relatively strong deference for markets and for market
Speaker 2: actors and people making decisions in those markets. And I
Speaker 2: was shocked by this. And my response was, why are
Speaker 2: you calling me about this. You're supposed to make widgets
Speaker 2: at low prices for Americans. Why are you calling me
Speaker 2: about police reform? What the hell does this have to
Speaker 2: do with you? Leave the political debates to Americans and
Speaker 2: to voters. Stop calling me about this. If anything, don't
Speaker 2: you want more police to protect your businesses? And they're like, no,
Speaker 2: this is it's really important to us, Like we want
Speaker 2: this done. And I remember sitting in my office and going,
Speaker 2: it's weird that these big businesses with all this economic
Speaker 2: power are leveraging that economic power to accomplish social and
Speaker 2: political objectives. And then in twenty twenty we have this
Speaker 2: censorship crisis. People want to question the efficacy of masks,
Speaker 2: You're not going to be on a platform. You want
Speaker 2: to question the safety of vaccines, you're not going to
Speaker 2: be on the platform. You want to question whether it's
Speaker 2: like fair to change voting laws in the middle of
Speaker 2: the election, you're not going to be on the platform.
Speaker 2: You want to question whether there's something at Hunter Biden's
Speaker 2: laptop that we should know about, you're not going to
Speaker 2: be on the platform, and we're not going to let
Speaker 2: you publish it. But it wasn't just censorship. Like any
Speaker 2: consumer in twenty twenty, you couldn't watch TV, you couldn't
Speaker 2: go online, you couldn't shop in a store without having
Speaker 2: nakedly political messages, almost exclusively the platform of one party
Speaker 2: being thrown in your face. And as a consumer, I said,
Speaker 2: how can it be that there are all these businesses
Speaker 2: who are willing to alienate huge swaths of their consumer
Speaker 2: base with these messages that they throw on our face
Speaker 2: and suffer no economic or competitive consequences at all. And
Speaker 2: I started to understand sort of the critique of the
Speaker 2: very narrow understanding the consumer welfare standard and the libertarianism
Speaker 2: that had sort of clommed onto it, which is, large
Speaker 2: businesses with market power will sometimes leverage that market power
Speaker 2: to injure consumers, and sometimes do it in politically motivated ways,
Speaker 2: and we should really care about the market power that
Speaker 2: makes that sort of mistreatment possible. But that's the thing
Speaker 2: I care about, is the market power that makes the
Speaker 2: treatment possible. I don't want to police people's speech, but
Speaker 2: I do want a police market power. But do Okay, I.
Speaker 3: Guess my question is do people have a right to
Speaker 3: be platformed? And then secondly, I mean, I would really
Speaker 3: like an Ermes Burken bag. Ormas will not sell it
Speaker 3: to me because I do not buy thousands and thousands
Speaker 3: of dollars worth of luxury goods every year. They have
Speaker 3: the option whether or not to sell me, and they
Speaker 3: are famously very exclusive in their decisions to do that.
Speaker 1: Yeah.
Speaker 2: So I don't think that anyone has a right to
Speaker 2: be on any particular platform, but you do have a
Speaker 2: right to participate in a market that isn't infected by monopoly,
Speaker 2: and you do have a right not to have the
Speaker 2: quality of the product that you want, including speech on platforms,
Speaker 2: be degraded by someone who will suffer no competitive consequences
Speaker 2: from doing that. For the same reason ermez does not
Speaker 2: have to lower its prices to sell you a burken bag.
Speaker 3: I think they should, but yeah, okay.
Speaker 2: But what they don't have the right to do is
Speaker 2: engage in conduct that maintains a monopoly where they can
Speaker 2: charge you higher prices than they could otherwise charge you
Speaker 2: in a competitive marketplace. Yeah, of course we're gonna have
Speaker 2: luxury goods, but we don't want a market, and we
Speaker 2: shouldn't have a market. And it isn't a free market
Speaker 2: for anyone who cares about free markets like I do.
Speaker 2: A market isn't free if monopolists get to charge you
Speaker 2: higher prices, degrade your product quality, deprive you of innovation
Speaker 2: because of their market power.
Speaker 1: How do you know in the case of sort of
Speaker 1: the world of algorithms, right, So, there are certain instances
Speaker 1: where okay, the platform is saying if you talk about X,
Speaker 1: you are gone, And in some cases there are emails
Speaker 1: and very clear trails about stuff like that. There are
Speaker 1: other cases where it looks like there is a dial
Speaker 1: that gets turned from time to time where suddenly, oh,
Speaker 1: I'm starting to see a lot more people talk about
Speaker 1: this perspective versus that perspective. Do you have a way
Speaker 1: of measuring whether, outside of like say, emails, whether companies
Speaker 1: are degrading their consumer experience with respect to those consumers'
Speaker 1: ability to speak freely? Is there like, do you feel
Speaker 1: confident in your way, in your ability to know whether
Speaker 1: the company is serving their customers while in.
Speaker 2: That Yeah, that's a good question, and you know, I'm
Speaker 2: not gonna we anti trust enforcers are sort of taking
Speaker 2: seriously the anti trust problems of the big tech companies
Speaker 2: for the first time. I mean, twenty twenty is sort
Speaker 2: of the watershed moment when President Trump brings the Meta
Speaker 2: suit in the Google search suit. I litigated the Google
Speaker 2: ad Tech case alongside the Biden Department of Justice when
Speaker 2: I was the Solicitor General of Virginia. I'm not going
Speaker 2: to pretend like applying the anti trust laws to new
Speaker 2: context doesn't come with some difficulties, including potentially the difficulty
Speaker 2: you're describing what I'm saying is that for a long time,
Speaker 2: especially in the twenty tens, there was a strong preference
Speaker 2: before President Trump became preference for saying this is difficult,
Speaker 2: it's new, it's novel, let's not bring the anti trust
Speaker 2: laws into these contexts. And my view is that that
Speaker 2: sort of ideologically driven, hands off, laissez faire approach created
Speaker 2: a system where we have super large, super powerful platforms
Speaker 2: that in my view, there are instances where they were
Speaker 2: quite obviously degrading their product quality in a way that
Speaker 2: would surprise me in the presence of real competition. And
Speaker 2: I also want to address the you know, in some
Speaker 2: instances there were emails where it was like, ohay, this
Speaker 2: person off. Look. I mean, I was involved in the
Speaker 2: Murthy litigation, the Missouri against Biden litigation about alleged either
Speaker 2: coordination or collusion between the government and big tech platforms
Speaker 2: during twenty twenty. It's more than just a couple of emails.
Speaker 2: This was rampant. It was systematic, and it was terrifying
Speaker 2: the relationship between the big tech platforms and the government
Speaker 2: about who was going to get to speak about what.
Speaker 2: And you know, I think this leads me to another
Speaker 2: important point and it's one I try to make to
Speaker 2: my libertarian friends who think some of what I'm saying
Speaker 2: sounds extreme, which is, if you are a libertarian and
Speaker 2: you care a lot about personal liberty, you ought to
Speaker 2: really care about monopoly because it is way easier for
Speaker 2: the government to control all of our lives if they
Speaker 2: only have to coerce a small handful of suppliers. If
Speaker 2: you have a wide range of options for consumers, it's
Speaker 2: harder for the government to pick up the phone over
Speaker 2: and over and over and be calling executive after executive
Speaker 2: and say we need you to do this to that
Speaker 2: person and this to that person. But if it's just
Speaker 2: a handful, that gets real easy, real quick. And I
Speaker 2: think we saw that in the Murthy litigation. It's just
Speaker 2: a couple platforms. You need a handful of government officials
Speaker 2: who call and brate platform people to kick consumers off.
Speaker 2: That's harder if there are more suppliers, if there are
Speaker 2: more choices for consumers. And so even if you are
Speaker 2: sort of libertarian and you have this ideological sort of
Speaker 2: predisposition predispositional view that markets correct themselves and government intervention
Speaker 2: is always worse than monopoly, my response is you don't
Speaker 2: want a tiny number of suppliers because the government can
Speaker 2: course them real easily, and if the government can course them,
Speaker 2: they can course you.
Speaker 3: So just on the content issue, I mean as part
Speaker 3: of the problem the advertisers as well here, because we've
Speaker 3: seen this happen where advertisers will say I don't want
Speaker 3: to put money into this particular business because I think
Speaker 3: there are a bunch of people saying racist or unacceptable things.
Speaker 3: And then secondly, I mean you've pressed first Section to
Speaker 3: thirty reform. I think this is something you're interested in,
Speaker 3: and that's always an interesting thought experiment to think what
Speaker 3: the world would look like if we never had Section
Speaker 3: two thirty. But I mean that exists that currently exempts
Speaker 3: Internet platforms from a lot of liability here, but if
Speaker 3: you were to reform it, surely that would come into
Speaker 3: conflict in one way or another with content and censorship.
Speaker 2: Let me talk about two thirty really quickly. So as
Speaker 2: a state enforcer, which is what it was before I
Speaker 2: was at the FTC trying to protect Virginians, the amount
Speaker 2: of time I spent trying to come up with complaints
Speaker 2: that had to plead around Section two thirty was like shocking.
Speaker 2: Section two thirty, on its face, seems to care mostly
Speaker 2: about protecting tech platforms in the early nineteen nineties from
Speaker 2: the liability for torts committed by people who are speaking
Speaker 2: on their platforms, and it has over the course of
Speaker 2: years been interpreted basically to immunize tech platforms from anything
Speaker 2: relating to content moderation. In my view, that isn't what
Speaker 2: Section two thirty says, but that is what the courts
Speaker 2: have done. My view about Section two thirty is that
Speaker 2: it's very difficult to justify immunizing the biggest companies in
Speaker 2: the history of the world from state and federal enforcement actions.
Speaker 2: And the FTC has tried to enforce Section five, our
Speaker 2: pre eminent statute against online platform companies, and we have
Speaker 2: lost cases because of Section two thirty where private businesses,
Speaker 2: large private businesses are interposing Section two thirty between the
Speaker 2: government and trying to protect Americans through government enforcement actions.
Speaker 2: In my view, that just categorically cries out for reform,
Speaker 2: but I don't think that that runs into conflict with
Speaker 2: censorship in the following sense. One of the some of
Speaker 2: the Section two thirty cases that have troubled me the
Speaker 2: most are people who were alleged that they were thrown
Speaker 2: off of a platform in violation of the platform's terms
Speaker 2: of service. It's just a contract claim, like, hey, I
Speaker 2: entered into this relationship with you, the platform, and I
Speaker 2: did so on the basis of what you had in
Speaker 2: your TOSS which governed, you know, the kind of things
Speaker 2: I'm allowed to say, the kind of conduct in which
Speaker 2: I'm permitted to engage, et cetera. And you kicked me
Speaker 2: off in violation of your own TOS. And the platforms
Speaker 2: have been able to interpose Section two thirty between consumers
Speaker 2: and say it doesn't you know, it doesn't matter what
Speaker 2: our TOS said. You don't we kicked you off. That's
Speaker 2: a content decision. Therefore you don't get to bring the lawsuit.
Speaker 2: And my view is, you know, consumers can protect themselves
Speaker 2: better from censorship if they're able to at least hold
Speaker 2: platforms to their terms of service. And one of the
Speaker 2: questions that we've asked consumers to provide us info on
Speaker 2: in our own tech platform investigation on this issue is
Speaker 2: give us examples if you have them, of times that
Speaker 2: you think that you were deplatformed or shadow band or
Speaker 2: whatever in violation of the terms you agreed to when
Speaker 2: you got on the platform and you know so on
Speaker 2: section two thirty, I do think it has been interpreted wildly,
Speaker 2: belong what anyone thought was going to say, and that
Speaker 2: at the very least, you know, Trump administration proposed these
Speaker 2: changes in twenty twenty. It should not provide immunity from
Speaker 2: government enforcement actions that are designed to protect Americans.
Speaker 1: Andrew Ferguson, FTC Chief, thank you so much for uh
Speaker 1: coming out a blah flah. Thanks for having me.
Speaker 3: That was our conversation with FTC Chair Andrew Ferguson. I'm
Speaker 3: Tracy Alloway. You can follow me at Tracy.
Speaker 1: Alloway and I'm Joe Wisenthal. You can follow me at
Speaker 1: the Stalwart. Follow our guest Andrew Ferguson, he's at a
Speaker 1: Ferguson FTC. Follow our producers Kerman Rodriguez at Kerman armand
Speaker 1: Dashel Bennett at dashbod and Kelbrooks at Kelbrooks. From our
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