The antitrust case against Big Tech, shaped by tech industry exiles
The antitrust case against Big Tech, shaped by tech industry exiles
For two decades, while the biggest technology companies amassed more power, branched into new businesses and gobbled up competitors, U.S. regulators had exercised restraint in enforcing antitrust laws
By Daisuke Wakabayashi
Published: Dec 22, 2020
Dina Srinivasan in Sausalito, Calif., Dec. 19, 2020. Srinivasan’s research into Google and Facebook is at the heart of a wave of antitrust lawsuits against Big Tech. (Gabriela Hasbun/The New York Times)
OAKLAND, Calif. — Three years ago, before she became an antitrust scholar whose work laid the blueprint for a new wave of monopoly lawsuits against Big Tech, Dina Srinivasan was a digital advertising executive bored with her job and worried about the bleak outlook for the industry.
“It just felt like, OK, Facebook and Google were going to win, and everybody else is going to lose, and that’s just the way the cards were stacked,” Srinivasan said. “I don’t think this was widely understood.”
So she quit her job at a unit of WPP, the world’s largest advertising agency, and pursued something she had not done since her days as a law student at Yale University: writing a legal treatise.
With no background in academia but an insider’s understanding of the digital ad world and a stack of economics books, she wrote a paper with a novel theory: that Facebook harmed consumers by extracting more and more personal data for using its free services. This year, she argued in another paper that Google’s monopoly in advertising technology allowed for the type of self-dealing and insider trading that would be illegal on Wall Street.
Her arguments reframed the antitrust thinking about the companies. And her timing was perfect.
Federal regulators and state attorneys general had expressed growing unease about the unchecked power of the technology giants. But many had struggled with how to bring a case because of the complexity of the companies and the markets they competed in. Arguing that these firms were harming consumers was also difficult because many of their products were free.
“Her work has allowed policymakers to clarify their ideas, to move from a confused state of being worried to a state where they can articulate the specifics of what they worry about,” said Thomas Philippon, an economist and New York University professor who has written about the concentration of corporate power. “There’s no doubt that her work has been influential.”
For two decades, while the biggest technology companies amassed more power, branched into new businesses and gobbled up competitors, U.S. regulators had exercised restraint in enforcing antitrust laws. But in recent months, mounting concerns about the outsize influence of tech’s most powerful companies have set off a cascade of antitrust lawsuits, with three cases targeting Google and two suits against Facebook.
As the legal arguments take shape, there is evidence of Srinivasan’s fingerprints.
When Letitia James, New York’s attorney general, accused Facebook of buying up rivals to illegally crush the competition as part of a multistate lawsuit against the company this month, she noted that consumers paid the price with reduced privacy protections. That notion of consumer harm is the crux of Srinivasan’s thesis in her paper, “The Antitrust Case Against Facebook.”
When Texas and nine other states filed an antitrust lawsuit against Google last week, the complaint identified many of the same conflicts of interest as Srinivasan’s paper “Why Google Dominates Advertising Markets” in the Stanford Technology Law Review. The lawsuit said Google controlled every part of the digital advertising pipeline and used it to give priority to its own services, acting as “pitcher, batter and umpire, all at the same time.”
The similarities were obvious for good reason. In September, Srinivasan became a technical consultant to the team of lawyers in the Texas attorney general’s office working on the investigation into Google. With her understanding of economics and the advertising market, she took on an expanded role and was instrumental in drafting the complaint, said a person familiar with the case who was not allowed to speak publicly on the matter.
“Dina was an integral part of the team, particularly in the closing months as we sought to finalize the petition,” the Texas attorney general, Ken Paxton, said in a statement. “Dina contributed immensely to the entire effort, and we were fortunate to have her aid.”
It remains to be seen how the courts will receive Srinivasan’s legal arguments. Facebook has said that concerns about its handling of privacy and harmful content are important, but they are not antitrust issues. Google said that the case led by Texas is “meritless” and “baseless.”
As regulators home in on the technology giants, they are relying on the assistance of current and former insiders like Srinivasan to provide the expertise necessary to apply 20th-century competition laws to 21st-century technology and markets.
For Srinivasan, 40, her second career as an antitrust scholar finally provided a use for her law degree from Yale, where she had a keen interest in competition law. Her final research paper at Yale in 2006 was an argument that the rules for the National Association of Realtors amounted to an illegal conspiracy among its members. (The discussion was in the news at the time because the Department of Justice had brought its own antitrust case against the trade association in 2005. The two sides reached a settlement in 2008.)
When Srinivasan graduated law school, she passed on a law career and started a company to help local businesses efficiently buy advertising on the internet. She sold the technology to a division of WPP and joined its then-subsidiary Kantar Media as an executive in 2012.
Srinivasan said she had an epiphany in June 2014 when Facebook announced that it would start tracking the behavior of users across the internet — and outside of its network — to sharpen its ad targeting. Even as her colleagues celebrated the news as an important breakthrough for advertisers, Srinivasan could not shake the feeling that this represented a failure of the free market.
“Who the heck consents to having a company track them across the internet,” she remembered thinking. “They could only do it because they had monopoly power to do something that clearly goes against consumer interests.”
After leaving the ad world in 2017, she spent the next year researching and writing a paper on why Facebook was a monopoly. When she was done, she submitted her paper to the websites of about a dozen law reviews. To her surprise, the Berkeley Business Law Journal, which is associated with the University of California, Berkeley’s law school, agreed to publish her work. Srinivasan said she cried at the news.
Her Facebook paper quickly captured the attention of regulators. In March 2019, a month after it was published, Rep. David Cicilline, the Democratic chair of the House antitrust subcommittee, wrote a letter to the Federal Trade Commission urging the agency to investigate Facebook on antitrust grounds, citing her paper, among other works. The New York attorney general’s office later asked her to speak to its lawyers about her work.
This year, she took aim with her Stanford Technology Law Review article at the other behemoth of the online ad world: Google. She explained the complex world of online ad exchanges, where display ads are sold and bought in milliseconds. Srinivasan argued that Google dominates nearly all facets of these markets, representing buyers and sellers while also operating the largest exchange.
While other electronic trading markets — namely, financial markets — are heavily regulated to prevent conflicts of interest and unfair advantages of speed and inside information, online ad trading is largely unregulated. She argued that Google’s dominance inflated the price of ads — a concept described as a “monopoly tax” in the multistate lawsuit led by Texas.
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Marshall Steinbaum, an assistant professor at the University of Utah’s economics department, wrote on Twitter that Srinivasan’s articles on Google and Facebook had a greater influence on the recently filed antitrust cases than all the other research about those companies or tech in general by traditional economists focused on competition policy.
“Her papers are just very clearly on point about the actual conduct of the platforms and its competitive significance,” Steinbaum said. “They’re helpful to enforcers and come from a perspective of someone who obviously knows the industry and the facts.”
These days, Srinivasan is a fellow with an antitrust research group at Yale, and she is trying to figure out what to do next. She passed the California bar exam last December and also considered enrolling in a doctoral program in economics. For a little over a year until September, she worked as a consultant to News Corp., advising the company on antitrust matters.
Srinivasan said she is just happy that anyone bothered to read what she wrote. While she still feels like an outsider to the world of antitrust scholars, she said not having a traditional academic background helped her see problems differently and come up with a new line of thinking.
“It probably helped me to be disconnected,” she said. “It allowed me to think outside the box.”