The Federal Trade Commission, in particular, is seeking a permanent injunction in federal court that could, among other things, require the company to divest assets, including Instagram and WhatsApp, and require Facebook to seek prior notice and approval for future mergers and acquisitions.
“Personal social networking is central to the lives of millions of Americans,” said Ian Conner, Director of the FTC’s Bureau of Competition, in a statement. “Facebook’s actions to entrench and maintain its monopoly deny consumers the benefits of competition. Our aim is to roll back Facebook’s anticompetitive conduct and restore competition so that innovation and free competition can thrive.”
The parallel lawsuits, months in the making, represent an unprecedented challenge to one of Silicon Valley’s most powerful corporations. The complaints zero in on Facebook’s acquisition and control over Instagram and WhatsApp, two key services in its social media empire.
The suits come roughly 14 months after New York Attorney General Letitia James announced that her office was leading a group of attorneys general in investigating Facebook for potential anticompetitive practices. More than 40 attorneys general ultimately signed onto Wednesday’s complaint. The FTC, meanwhile, has been conducting its own antitrust investigation of Facebook since June 2019.
“For nearly a decade, Facebook has used its dominance and monopoly power to crush smaller rivals and snuff out competition,” James said at a press conference Wednesday. “By using its vast troves of data and money, Facebook has squashed or hindered what the company perceived to be potential threats.”
In a tweet after the lawsuits were announced, Facebook said: “We’re reviewing the complaints & will have more to say soon. Years after the FTC cleared our acquisitions, the government now wants a do-over with no regard for the impact that precedent would have on the broader business community or the people who choose our products every day.”
Much of the scrutiny of Facebook concerns the companies it has purchased to build up a massive audience that now totals more than 3 billion users across its portfolio of apps, according to its financial statements. That dominance has raised questions by some legal experts, including US lawmakers, about whether Facebook CEO Mark Zuckerberg set out to neutralize competitive threats by gobbling them up.
As the drumbeat in Washington against Facebook has grown louder, the company has had years to prepare for a showdown. It’s moved to tightly integrate its apps on a technical level, a decision some critics have suggested is a strategy to frustrate any potential breakup. It’s stepped up its hiring of lawyers with antitrust and litigation experience. And the company has fine-tuned its talking points, settling on a narrative that Facebook welcomes regulation but that cracking down too hard could risk giving other countries like China a competitive edge in the fast-moving technology sector.
The company has also argued that regulators reviewed the WhatsApp and Instagram deals at the time and did not see a reason to block them then. Instagram was acquired particularly early on in its lifecycle, before many came to view it as the successful giant it is today.
Wednesday’s legal action makes Facebook the second global tech company to be taken to court by US and state government officials this year over antitrust concerns. In October, the Justice Department and 11 states filed a lawsuit against Google, alleging that it had stifled competition to maintain its powerful place in online search and search advertising. (Google has called the suit “deeply flawed” and that consumers use Google’s platform because they choose to, not because they are forced to.) The last major tech antitrust suit before that, experts say, dates back to the US government’s landmark case against Microsoft in the late 1990s and early 2000s.
Facebook and Google aren’t the only tech companies of concern among policymakers. US officials have increasingly probed the entire tech sector for potential anticompetitive behavior, giving particular focus to the big four firms that now touch every corner of our lives. The scrutiny has ranged from Apple’s control over the iOS app ecosystem to Amazon’s treatment of independent sellers on its e-commerce platform.
In Facebook’s case, government officials will need to prove in court that the company’s alleged misconduct led to real-world, measurable harms to consumers or competition, said Hal Singer, an economist and antitrust expert at George Washington University’s Institute of Public Policy.
“It doesn’t have to be a price effect; it could be some privacy thing,” Singer said. “But you have to show it causally.”
Singer added that if Facebook is ultimately deemed to have violated the law, the company could try to forestall a breakup by arguing that its services are too tightly integrated to be unwound. But, he said, it would be up to the courts to determine whether that is a persuasive argument.
As the Microsoft case showed, antitrust lawsuits can take years to play out. But they can ultimately have an enormous impact. Experts credit the Microsoft suit, which was eventually settled, with paving the way for Google’s rise.
Similarly, a court ruling that breaks up Facebook or imposes certain behavioral limitations could have wide-ranging effects on what new startups may emerge — and what products consumers see in the marketplace.