Editor's letter: Focus sharpens on Big Tech & AI

14 April 2024
Lewis Crofts
MLex Editor-at-Large

The advent of AI and all the turbulence it creates for companies, regulators and society was the standout theme of this year’s American Bar Association Antitrust Spring Meeting. The largest gathering in the section’s history, with over 4,100 attendees, indicated how antitrust policy and enforcement is at the center of a vivid debate on what part AI will play in our lives — and what regulators should do about it.

Regulators voiced concerns that the big digital players of today will quickly become entrenched as the big players of the AI revolution, perhaps through partnership deals that avoid merger scrutiny or exclusionary conduct squeezing out rivals. One summed it up: “When I look at AI, I see only monopolies. Nothing else.”

Enforcers were keen to stress that after fallow years in the 2010s, cartel policing has been reinvigorated with more probes launched, often on the authority’s own initiative rather than through whistleblowers. That said, cooperation is increasing, they said, as companies see the value of voluntarily coughing up cartel evidence.

For mergers, watchdogs stressed that the way to look at harms in dealmaking is broad and keeping pace with the way companies generate value. This means looking at innovation, labor markets and the economic dynamics of industries that might create value through networks, ecosystems or partnerships. Some regulators are wrestling with “killer acquisitions,” others are concerned with private-equity roll-ups and common ownership.

In privacy and consumer protection, regulators voiced fears that the “sci-fi level hype” around AI could lead to old-time fraud and see excessive amounts of consumers’ personal data sucked up, without consent, to train large language models. Regulatory fears about AI also extend to unprecedented consumer fraud, including bogus claims about what AI can do. Voice cloning, deep fakes and other digital sleights of hand might not just swing elections but could enable alarming new ways to trick consumers. “Fraudsters are great innovators, as all of you know,” said a senior FTC official.

In recent years, antitrust regulators have struggled over their economic impact, being accused of missing key market developments or failing to deliver for consumers. Emerging from the ABA showcase was that the antitrust community envisages a slew of new interventions worldwide to tackle tech markets, against the background beat of AI, and not be caught napping at the economy’s next inflection.

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