Welcome back for another week of What’s Next, where we report on the intersection of law and technology. Today, Gary Reback, who helped the DOJ make its antitrust case against Microsoft in the late ’90s, shares how the historic lawsuit has led to the current trust busting frenzy surrounding Silicon Valley. Also, the first murder case built on online genealogy data goes to trial. Plus, Google’s next employment headache: non-like-minded job applicants. And Russia demands access to photos and messages from the country’s Tinder users—to which I say, be careful what you wish for.
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How Microsoft’s ’90s Trust Busting Saga Foretold Today’s Antitrust Tech Environment
In 1998, the U.S. Department of Justice and 20 state attorneys general sued Microsoft for using its exponentially amassed power to snuff out browser company Netscape and other competitive threats.
Gary Reback, now an attorney with Carr & Ferrell in Menlo Park, California, represented Netscape at the time and helped the government build its lawsuit against the tech pioneer. A 1997 Wired cover story declared Reback as “maybe the only man Bill Gates feared.” The three-year United States v. Microsoft Corp. litigation ended with DOJ allowing Microsoft to remain intact and the company agreeing to a set of rules limiting its monopoly and retaliation power.
Since that fateful settlement, Reback has represented clients in the U.S. and Europe who have complained about Google’s anticompetitive tactics. Now, as trustbusters descend on Silicon Valley from home and abroad once again, Reback shares what has changed—and more importantly, what hasn’t, as rumors of antitrust action against companies like Facebook, Apple, Amazon and Google swirl in Washington.
Answers have been edited for length and clarity.
➤➤How does the Microsoft decision relate to our current antitrust climate? Google’s conduct, under the Microsoft case, falls within what was considered illegal. In 2011, the Federal Trade Commission opened an investigation into Google’s alleged search manipulation. Two years later, the agency closed the investigation, exonerating Google and shutting down other investigations into Google’s conduct.
The move was widely criticized by the press and some members of the antitrust bar as protecting Google and making a political decision. The FTC issued a two-page note that said it didn’t find anything bad, and that Google was a wonderful company. A couple of years later, an internal staff report released to the Wall Street Journal questioned a lot of the things the commission said in its closing memorandum.
The report included a discussion of the application of the Microsoft case, which the staff said they shouldn’t follow because they could not evaluate the procompetitive effects of Google’s conduct. The Ninth Circuit has not followed the Microsoft decision, but the decision has been followed in every other instance it has come up.
The Microsoft case was tried by excellent counsel on both sides and was a per curiam opinion, issued by the entire United States Court of Appeals for the District of Columbia Circuit without dissent. And that court had a broad spectrum of opinion—everyone from conservative Republicans to liberal Democrats. That was our guidance in the Valley, and that worked for a while. But then Google, in particular, said the Microsoft decision didn’t apply.
➤➤ Why do you think we’re seeing greater antitrust enforcement pressure now? There are probably a lot of answers to that. There’s been a great deal of pressure to do something between 2013 and now. Complaints have continued in terms of privacy and anticompetitive activity, Google’s alleged anticompetitive conduct has broadened, and the EU has taken a lead in addressing it. During the Obama administration, I think most people viewed the complaints against Google as meritorious and covered by existing law, yet the administration didn’t do anything. President Barack Obama actually spoke out in favor of Google. Now, Google’s protectors are gone, and that leaves the FTC and the Department of Justice free to do what they would normally do in terms of enforcement.
➤➤ What makes trust busting different today than in the ’90s? We live in a different time. Citizens United, the decision that permitted more or less unlimited anonymous campaign donations, has been an enormous deterrent to enforcement. The amount of money and effort Google has spent on lobbying dwarfs whatever Microsoft did, which has allowed Google to skate free. Plus, former Google executive chairman Eric Schmidt has a much more pleasant personality than Bill Gates.
➤➤ Some of the 2020 presidential candidates are running on a platform that includes breaking up tech monopolies. Do you think the election could sway antitrust law?
The campaign could and the election might as well. A couple years ago, I was a speaker at a program in Washington, D.C., and Elizabeth Warren was also a speaker, and she talked about antitrust enforcement, particularly in tech. That was the first time in decades, and maybe ever, that I heard a national political figure give a speech just about the need for antitrust enforcement.
Now, we’ve had these avalanches of public outrages as a consequence of companies unfettered by real competition or the consequence of government regulation. They’re just out there doing whatever they want, and whatever they want turns out to be very bad for a lot of Americans.
These most recent calls for antitrust enforcement stick out because of the bipartisan support. That suggests that things will change and will continue to change more, but we won’t be able to really say anything until an enforcement agency actually does something
➤➤How could antitrust law be shaped by these investigations?
I think for a long time antitrust law has been in the doldrums. A lot of people go through law school never having taken antitrust law. And now, not every law school even teaches it. In-house antitrust lawyers do the real heavy lifting of antitrust enforcement. Up until recently, they would generally be laughed at if they told their companies to worry about government enforcement, and you were kind of a sap if you self-regulated assuming there would be enforcement. But now, other big companies not even in tech might have to say, “Gee, maybe antitrust is something we have to pay more attention to.” In the final analysis, it depends on what the enforcement agencies actually do.
First Murder Case Built on Online Genealogy Data Goes to Trial
Ancestry.com and the surge of genealogy sites that have popped up in the last five years are not just a hobby of your bored Aunt Susan. The data gathered by people submitting spit, cheek swabs and other DNA samples to track their family trees is also being leveraged by law enforcement to solve cold cases.
The first murder trial using the technology begins this week. Jury selection for the trial of William Earl Talbott II, who is accused of killing Tanya Van Cuylenborg and Jay Cook, kicked off this week in Snohomish County Superior Court in Everett, Washington.
Investigators used a website called GEDmatch to help track down Talbott, who is accused of killing the couple 32 years ago. GEDmatch aggregates genetic genealogy tests from 23andMe, FTDNA.com (the Family Finder test), and Ancestry.com. The website famously helped police track down California’s alleged Golden State Killer by matching DNA from scenes of his 12 murders and 45 rapes with DNA on the website from a distant family member.
This week’s trial could spell out how this crowdsourced data will hold up in a court of law.
Google’s Conservative Job Applicants Organize in a Class Action
Google doesn’t just have antitrust probes to worry about. The tech giant is also pushing back against class action claims from job applicants who say Google discriminated against them based on their conservative beliefs and status as a racial majority within the company.
Presiding Judge Brian C. Walsh of the Superior Court of Santa Clara County denied Google’s request for demurrer on the class action status Friday. In his tentative ruling published Thursday, which was upheld during a 20-minute hearing Friday, Walsh said Google failed to show there is “no reasonable possibility” to identify a class made up of people with shared political ideologies.
In Google’s support for demurrer, its Paul Hastings legal team led by San Francisco partner Zach Hutton argued the conservative political class did not represent a well-defined community of interest, and that neither the plaintiffs nor the law have provided a concrete definition of “conservative,” unlike classes defined by race or gender.
“Even if we look at applicants one-by-one, we would have to make a subjective decision about their conservatism,” Hutton said in court. “People’s political beliefs are often not binary.”
Representing the job applicants, Harmeet K. Dhillon, founding attorney of Dhillon Law Group said even typical classes are not as straightforward today. “Race and gender are no longer considered to be binary constructs, and yet the courts deal with this every day,” she said.
To determine the class, Hutton said the parties would have to review millions of records and then make a subjective decision. Dhillon said they could potentially expedite the process by navigating Google’s hiring software and access to applicant data with search terms to unearth relevant characteristics that might be flagged by recruiters and hiring managers.
Russia Wants to Swipe Tinder Data
Russian Tinder users might be looking for love in the wrong place. The dating app is now one of 175 online companies required to save six month’s worth of data to be available for Russian authorities upon request. Cringey pickup-line laden messages, photos, audio and video recordings could be part of the stored dataset shared with Russia’s law enforcement agencies.
“We received a request to register with the Russian authorities, and, as of now, we have registered to be compliant,” a Tinder spokesperson said in an emailed statement. “However, this registration in no way shares any user or personal data with any Russian regulatory bodies and we have not handed over any data to their government.”
Roskomnadzor, Russia’s media regulator, announced the move with a meme on Twitter. On the left panel of the meme, an illustration depicts the brashness of Internet dating introductions, with the character saying, “Hey babe.” The right side of the meme shows an in-person meet-cute, with a classic “Hi, I’m Vityusha,” an informal use of the name Viktor.
The demand for Tinder’s data comes with a new wave of media censorship, blocking messaging apps, VPNs and cloud services. Although the country’s surveillance and censorship activities are focused on domestic targets, Russia’s leveraging of third-party data providers might be part of a shift in surveillance strategies that could be trained on the rest of the world. Foreign Policy’s Edward Lucas writes that there’s been a shift of power in the spy world, and that closed societies now have the edge over open ones.
“It has become harder for Western countries to spy on places such as China, Iran, and Russia and easier for those countries’ intelligence services to spy on the rest of the world. Technical prowess is also shifting. Much like manned spaceflight, human-based intelligence is starting to look costly and anachronistic. Meanwhile, a gulf is growing between the cryptographic superpowers—the United States, United Kingdom, France, Israel, China, and Russia—and everyone else. Technical expertise, rather than human sleuthing, will hold the key to future success,” Edward wrote.
On the Radar
• Facebook, Princeton Blind Company’s Computer Vision A home design website claims Facebook Inc. and Princeton University scraped data from more than 2,500 three-dimensional objects and 45,000 scenes vital to the development of its computer vision technology. Read more from Ross Todd here.
• Digital Medical Malpractice Attorneys general from 16 states have alleged a health care IT provider didn’t properly protect data or disclose the 2015 breach of 3.9 million individuals’ electronic protected health information. The case could set a precedent for how HIPAA data privacy enforcement will take shape in the future. Read more from Victoria Hudgins here.
• U.S. Might Help EU Skirt Data Protection Rules The European Union is set to begin negotiations with the U.S. for an agreement to speed up the exchange of electronic evidence in criminal cases. The negotiations would help European authorities work around EU data protection rules in crimes involving EU citizens. Read more from Simon Taylor here.
Thanks for reading. We will be back next week with more What’s Next.