When It Comes to Big Tech, Antitrust Is a Distraction. Our Focus Should Be Workers | Opinion

The age of impunity for huge tech companies like Amazon, Google, and Facebook may be coming to a close. There have been few checks on the limitless power they wield over our lives and over the market thus far, but in recent weeks, Senator Josh Hawley introduced two bills geared at addressing antitrust concerns when it comes to Big Tech. And President Biden's pick for commissioner of the Federal Trade Commission, Lina Khan, is a noted advocate of using antitrust against Big Tech companies. Khan, who the Senate will hold a confirmation hearing for on Wednesday, wrote a landmark article in the Yale Law Journal in 2017 arguing the importance of "addressing Amazon's power" through antitrust intervention. And if you thought she'd changed her mind, it's still her pinned tweet.

Amazon's dominance poses anti-competitive concerns - but antitrust law fails to grasp them. My piece explaining why: https://t.co/BPq9TZYEPB

— Lina Khan (@linamkhan) February 28, 2017

Khan's appointment would represent a watershed moment for reigning in Big Tech, something mammoth tech companies are well aware of; NetChoice, a trade association that includes Facebook and Google as members, sharply critiqued Khan's nomination, describing her as a "radical pick." And she is not alone; with fellow antitrust advocate Tim Wu's appointment to the National Economic Council, the Biden administration is clearly signaling an openness to applying antitrust law against Big Tech.

The problem is, Big Tech's real problem is not antitrust. It's the exploitation of its laborers. And in locating the fight against Google and Amazon as one over monopolies, these well-intentioned critics are missing the point and obfuscating the true problem.

And it's a big problem. Union membership is at an all-time low, with members constituting just 34 percent of public-sector workers and just six percent in the private sector. What this has meant in practice is that large firms have been granted the freedom to expand at astronomical rates, coupled with little-to-no regulation of labor conditions (or anything else, for that matter). Inequality and exploitation have intensified, despite the utopian promises that the gig economy would provide greater flexibility and freedom.

Tech companies in particular have gained exponential power and capital. But the criticism around them has been frustratingly narrow, focused on breaking up companies like Facebook and Google, instead of on enforcing just labor laws.

What this means is that instead of insisting on the wellbeing of workers, those pushing for reform in the Big Tech industry seem to care only about the wellbeing of the market.

Antitrust laws were not meant to work this way. When they were first developed in the late nineteenth century, they were intended to challenge the consolidation of control over production, which had coalesced into the coffers of those at the very top. As assistant professor of law at Wayne State University Sanjukta Paul has shown, what ultimately became the Sherman Act in 1890 was routinely perverted throughout the twentieth century, when it was regularly used to punish collective action by workers. This gross reinterpretation, which treated organized workers as a force to be reined in while allowing firms to carry on undisturbed, developed alongside a rising neoliberal consensus among lawyers, policymakers, politicians, and economists around the almighty ideal of a competitive market.

It's an ideal that remains strong today, informing the antitrust breakup cause and even concern over mergers and acquisitions; in other words, those seeking to use antitrust to break up Big Tech are operating under the myth that if only we can create smaller companies by splitting up larger ones, and if only we can prevent them from acquiring other firms, we will return to a normal rate of competition and the market will settle into a calm equilibrium.

This is not how just labor laws come into existence or are enforced.

Amazon workers
Amazon workers stand by an Amazon Prime delivery truck. Stefano Guidi/Getty Images

You can see the perversion of antitrust laws to penalize laborers and help corporations in the egregious case of Uber: Uber is legally allowed to coordinate prices on the app, but drivers don't have the right to demand better wages together because under current interpretations of antitrust and labor laws, that's seen as collusion. It's clear in this case that breaking up big companies might be a good thing, but it won't solve the fundamental problem of corporate power over workers' lives.

This is something workers understand instinctively. As a software engineer at Amazon told me, "We can't sit around and wait for the government to step in and help us. The way to fight corporate tech power is through worker power, because ultimately, someone is going to be writing the algorithm for your Twitter feed; it's a question of who makes the decisions and what their motivations are. Someone needs to say no to these companies, and it has to be the workers."

Rather than antitrust, for employees at tech companies, the more obvious path lies in unionization efforts and labor law. The Alphabet Workers Union, for example, formed early this year to do just that. It's led by white-collar software engineers but open to all Alphabet workers including vendors and contractors. But as the passage of Prop 22 in California demonstrates, these mega corporations are acutely aware of the power employment status has and are spending millions to keep coordination rights away from their workers.

This is not to say that antitrust is bad, or that it's not the right approach; rather, antitrust laws should be implemented with workers in mind, rather than the market. For example, antitrust could be used to eliminate non-compete clauses, which are the literal "restraint of trade" mentioned in the Sherman Act.

This need not be a departure. The law is always setting economic coordination rights according to particular criteria, and scholars like Paul have made this point about antitrust law, where this changeover of power can occur. As the law has actually been applied, however, we have seen anti-competitive actions by business firms allowed to proceed while worker organizing is viewed as distorting competition.

The goal should not be to break up corporations so much as to democratize them, so that workers themselves are stakeholders.

It all comes down to a question of control. As the Amazon engineer told me, "We're talking about power, not profit margins. Often people think that their only recourse to influence the world is through the government, but people have power as workers too, and workers at powerful companies can be powerful people."

It really is as simple as that. The best way to think about antitrust, then, is to take away coordination rights from Big Tech companies and grant them instead to workers, closer to the original aims of antitrust law to begin with.

Economic power today rests with these Big Tech companies, and too many conversations about fixing this problem—even, or especially, conversations in progressive circles—are stuck at the level of maintaining competition, which means maintaining hierarchy.

Perhaps by centering workers, the discussion can finally move on.

Jake Pitre is a researcher and writer, and his work has appeared in The Globe and Mail, Columbia Journalism Review, Pitchfork, Hyperallergic, and VICE.

The views in this article are the writer's own.