Over the last few months, tech critics and advocates have debated what, exactly, the real-world implications of tech antitrust legislation sponsored by Senate Judiciary Competition Policy, Antitrust, and Consumer Rights Subcommittee Chair Amy Klobuchar, D-Minn., would be.
The makers of tech products from Amazon to Apple to Google have all raised concerns that the bill would dramatically change consumer-favorite products. Supporters of the bill have countered that the legislation is narrowly targeted at addressing self-preferencing practices by big tech.
But here’s Washington’s dirty secret: No one actually knows for sure what the impacts would be.
We can all make our best guess. After a thorough examination of the legislative text of Klobuchar’s bill, our organization came to the conclusion that the legislation would break Amazon Prime as we know it today, eliminating both the funding model and logistics model that make Prime work. Amazon itself has said the bill would “significantly degrade” Prime. At the end of the day, both are predictions — predictions of the consequences consumers would face if the bill passed.
Klobuchar has dismissed many of these predictions. But even a bill’s sponsor never truly knows how legislation will be enforced and interpreted by the courts. Take, for example, SESTA-FOSTA, a well intentioned effort to combat online sex trafficking online. The legislation sounds good, and it passed Congress with near unanimous support. But four years later, SESTA-FOSTA is widely criticized as a failure that ended up endangering sex workers. It hasn’t been used to prosecute sex traffickers and even sparked a movement to repeal the legislation.
So when Klobuchar waves off the concern that her antitrust legislation would have disastrous consequences for consumers, content moderators, U.S. national security, and privacy, she doesn’t know. At this stage, no one can be 100 percent certain of the bill’s real-world impact.
What we do know is that Klobuchar’s legislation would require some level of change to the biggest, most-popular tech products in America. Amazon Prime, with its free two-day shipping, has more than 150 million U.S. subscribers. Many of your friends and family probably use Google Maps to get from point A to point B. And Apple sells some of the most popular phones in America. By design, Klobuchar’s bill takes aim at each of these companies and their products.
Instead of addressing concerns with her legislation, Klobuchar offered a slap-dash manager’s amendment clarifying that the legislation will not outlaw subscription services like Amazon Prime. But an outright prohibition on subscription services was never a concern that was raised; it was how the bill would cripple Prime’s funding and logistics model.
In the recent markup of S. 2992, a number of Democratic senators raised concerns with the legislation, highlighting its consumer impacts, privacy issues, and how the legislation might end up protecting hate speech and misinformation online. If she wants to get the support of the full Democratic caucus behind the legislation when it comes to the floor, Klobuchar will have to make substantive changes to her legislation.
Then there’s the political cost of getting this wrong. I want my fellow Democrats to do well in this November’s elections. But let’s say the bill passes and there’s an impact to consumer products. What happens when courts interpret the legislation as I believe they will? What happens to the party in charge of Congress when 118 million Amazon Prime subscribers lose some functionality from Prime or even free two-day shipping?
Our organization recently commissioned polling in swing states and battleground congressional districts, and it showed that independent and Democratic voters are seriously worried that antitrust legislation will hurt them more than it helps them. And after hearing arguments for and against the bill, Democrats and independents saw the biggest drop-off in support for the legislation.
While Klobuchar’s conviction may be strong, her failure to engage on the substance of concerns about her legislation should be disconcerting. No one has a crystal ball, and with legislation as sweeping as S. 2992, policymakers should be looking at every concern with humility and a willingness to improve their legislation.
Adam Kovacevich is the founder and CEO of the Chamber of Progress, a center-left tech industry policy coalition promoting technology’s progressive future.