Advance to Go: How Big Tech Evades Antitrust Law

By Palakshi Sharma '26

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For decades, antitrust laws have prevented monopolies and regulated corporations to protect consumers. However, in the modern age, traditional antitrust laws are inadequately equipped to regulate powerful Big Tech companies. Google and Meta dominate everything from social media to advertisements and search engines, suppressing competition. Their dominance is asserted through data control and exclusionary algorithms, not price fixing. The cases, Google v. United States (2023) and FTC v. Meta (2020), emphasize the limitations of the Sherman and Clayton Acts in addressing this new era of digital monopolies and stress the importance of updating antitrust law to handle modern platforms. 

Antitrust laws must be structurally reformed to update legal standards and enforcement tools to address the harsh reality of Big Tech monopolies. By examining historical flaws and analyzing Big Tech’s exploitation of vague regulations, this essay explores the potential and drawbacks of current antitrust legislative reform. 

Historical Context

The Sherman Antitrust Act (1890) was the first antitrust legislation in United States history, responding to the monopolistic practices of industrial corporations. It outlawed “monopolization, attempted monopolization, or conspiracy or combination to monopolize” and “every contract, combination, or conspiracy in restraint of trade.” (1) Despite this act being a landmark for competition policy, its vague language, weak enforcement, and inconsistency with United States Supreme Court cases hindered its effectiveness. For example, the Maple Flooring Manufacturers Association v United States (1925) involved a trade association fixing prices and controlling shipments, directly violating the stipulations of the Sherman Act. (2) In order to avoid legal consequences, they devised a “gentleman’s agreement” which facilitated the exchange of sensitive business data, allowing members of the association to adjust their pricing accordingly and effectively shut out competition. (3) The Court ruled that this plan was not a violation of the Sherman Act. (4) However, later cases had different rulings, which led to uncertainty as to what constitutes a Sherman Act violation. 

To resolve uncertainty in the Sherman Act, Congress passed the Clayton Act in 1914, which prohibited “mergers and acquisitions where the effect ‘may be substantially to lessen competition, or to tend to create a monopoly.’” (5) It additionally bans price discrimination through the Robinson-Patman Act amendment. The mandate was further amended through the Hart-Scott-Rodino Antitrust Improvements Act, which “requires companies planning large mergers or acquisitions to notify the government of their plans in advance.” (6) The same year, Congress introduced the Federal Trade Commission, an independent regulatory agency, to enforce antitrust law and protect consumers against deceptive business practices.

These laws were utilized throughout the twentieth century to oversee company practices and maintain market competition, resulting in the dismantling of AT&T in the 1980s, for example. However, the popularity of the Chicago School of Economic Thought in the 1980s, which claimed that “such large firms may have gained their dominant market positions through efficiency advantages that provide greater benefits to consumers than a market forced by the law to include many smaller firms,” (7) triggered a shift to laissez-faire approach to economic policies, which weakened antitrust regulatory power and allowed modern day Big Tech corporations to emerge.

Regulatory Challenges in Big Tech 

Unlike traditional industrial monopolies, Big Tech companies assert dominance by leveraging digital platforms, network effects, and large amounts of consumer data. Google maintains over 90% of the global search engine market, enabling it to control the flow of information and advertising. (8) Similarly, Meta owns unparalleled social networking platforms, ensuring their influence over communication and media. The challenges with applying traditional antitrust laws to Big Tech regulation stem from the evolution of market dominance as everything has become digital. Traditional antitrust laws focus on price-fixing and consumer protections, which suits industrial economies, but not Big Tech, who offer free services while benefiting from “surveillance capitalism.” (9) Defined by Harvard professor Shoshana Zuboff as “the unilateral claiming of private human experience as free raw material for translation into behavioral data,” Big Tech companies monetize user data and sell targeted advertisements through capitalizing on behavioral insights. (10) User interaction anchors their market power. 

Data monopolies enable forms of market manipulation that traditional antitrust law can’t regulate. (11) Their free, convenient services conceal anti-competitive practices.

Mergers and acquisitions are another significant challenge for traditional antitrust laws with Big Tech companies. Meta, for example, acquired Instagram and WhatsApp due to fear that they “...could threaten Facebook’s dominance…” (12) Zuckerberg expressed his concerns about the growth of WhatsApp in comparison with Facebook Messenger, and he feared that Google may secure WhatsApp before Meta could. Thus, to eliminate competition, Meta acquired WhatsApp. (13) These firms retain their standing in the market without engaging in traditional anti-competitive behavior, as defined by the Clayton Act, making it difficult to govern Big Tech companies. (14)

Legal Case Studies

Section 2 of the Sherman Act, which prohibits monopolization, has been the only efficacious approach in the regulation of Big Tech monopolies. (15) Notably, Google v. United States (2023) is one of the most significant antitrust challenges against a modern tech giant. The Department of Justice (DOJ) and several states issued a complaint in 2020, which stated:

1. Monopolization of the search services market, specifically by entering exclusive agreements with Apple, Mozilla, and Android distributors,

2. Monopolization of the ad exchange market by auctioning off ad placements for businesses to bid on and preventing competition emerging,

3. Exclusionary conduct against specialized vertical providers to suppress competitive niche search providers (i.e., TripAdvisor, Expedia). (16)

   
   

The court ruled in favor of the plaintiffs, with Judge Mehta stating that “Google is a monopolist, and it has acted as one to maintain its monopoly.” (17) The court maintained that Google had “caused anticompetitive harm” and dismissed their rebuttal of “procompetitive justifications.” (18) While this ruling was significant and clarified legal precedent, it weakened standards for evidence in antitrust violations. Judge Mehta applied the Microsoft causation, which allows courts to “infer causation” if the conduct is “reasonably capable” of maintaining a monopoly. (19) This means that plaintiffs only have to prove that harm plausibly happened, which weakens the standard for evidence. (20) Judge Mehta’s lenient application of the Microsoft case expanded antitrust regulatory power, but at what cost? (21) The line between monopolistic practices and competitive successes is blurred as a consequence of the ruling, further convoluting antitrust law as a whole. 

FTC v. Meta (2020) is another modern-day landmark case in the antitrust sector because of its implications for regulating anti-competitive practices in big tech. The Federal Trade Commission alleged that Meta illegally maintained a monopoly “through a years-long course of anticompetitive conduct.” (22) The plaintiffs claimed that Meta, through its acquisition of Instagram in 2012 and Whatsapp in 2014, “engaged in a systematic strategy…to eliminate threats to its monopoly.” (23) They affirmed that the acquisition of these personal social networking and messaging apps simultaneously negates the threat to Meta’s monopoly and “ensures that any future threat will have a more difficult time gaining scale…” (24) This strategy creates a cycle of absorbing potential threats early, raising the barriers to entry and preventing platforms from reaching a competitive point, ensuring the firm’s monopoly.

Furthermore, the plaintiffs alleged that Meta enforced anticompetitive market conditions by limiting Application Programming Interfaces (APIs) to potential competitors. (25) One example of this was when Twitter launched Vine, a short video app, and Facebook shut down the API that allowed Vine to access users’ Facebook friends. (26) This move was a tactic for Meta to ensure their dominant position in social media networking apps. In their complaint, the FTC emphasized that such practices stifle competition and preserve Meta’s monopoly over the industry, violating antitrust law. (27) 

Policy Reforms

These legal battles stress the urgency of reform to hold Big Tech accountable and protect consumers. Big Tech monopolies wield power through algorithmic bias, data control, information manipulation, and platform dependencies. Lawmakers must update policy accordingly to ensure the safety of consumers. The Biden Administration stressed antitrust reform through executive orders and important appointments. (28) However, this is just the beginning of a prolonged series of reforms to antitrust laws regulating Big Tech monopolies, which must address the need to update legal standards, enhance enforcement and accountability measures, and expand regulatory oversight.

Many favor adjusting current antitrust law and regulation to modernize, while others support the installation of a new regulatory body over the digital sector. (29) The American Innovation and Choice Online Bill bars dominant platforms from favoring their own products, limiting competing businesses, or inconsistently applying terms of service to users. (30) Critics of the act argue that the bill fails to address structural issues, such as data monopolies, deeming it insufficient for effective regulation. (31) 

The Open App Market Act, a bipartisan bill, targets Apple’s and Google’s app stores to promote competition and fairness for emerging app developers. (32) The bill would target “covered companies”, ones with more than 50 million U.S.-based users, and prevent them from requiring developers to pay Apple and Google 15-30% commission on app sales. (33) The act would permit consumers to delete pre-installed apps, download third-party app stores, and prevent dominant companies from promoting their own apps and prohibiting competition. (34)

While these legislative proposals serve as a strong starting point for conversations about reforming antitrust laws, they fail to address all of the complexities that technology brings to monopolistic behaviors. These bills need to strengthen enforcement, as proposed in Senator Klobuchar’s Competition and Antitrust Law Enforcement Reform Act (CALERA), which would increase budgets for the DOJ and FTC and shift legal standards in the Clayton Act to forbid mergers that risk harming competition, attributing the burden of proof onto companies to justify them. (35) Although this is a significant departure from traditional antitrust legal proceedings, with the government typically having the burden of proof, it may prevent further monopolistic behaviors from major companies. Exclusionary conduct is banned under the bill as well, a vital aspect of legislation in the digital age, especially with practices such as API restrictions and data hoarding. (36) It also ensures oversight post mergers, which may be seen as a government overreach. (37)

Collectively, these three initiatives confront different challenges put forth by modern antitrust enforcement in a new digital era. These reforms establish a fundamental guideline for reasserting regulatory oversight over major tech platforms, despite complications with implementation and legal clarity. Without comprehensive legislative action, the established market power of Big Tech will continue to compromise consumer protections, market fairness, and innovation. Lawmakers must strategically adapt antitrust laws, with bipartisan support, to restore competitive practices and safeguard American market integrity. 

Endnotes

1. Nguyen, Stephanie T. “The Antitrust Laws.” Federal Trade Commission, March 4, 2022. https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws. 

2. Maple Flooring Manufacturers’ Association v. United States, 268 U.S. 563 (1925).

3. Probst, Nathan. “The Failure of the Sherman Anti-Trust Law.” Penn Carey Law: Legal Scholarship Repository, 1926. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8130&context=penn_law_review. 

4. Ibid. 

5.  Nguyen, Stephanie T. “The Antitrust Laws.” Federal Trade Commission, March 4, 2022. https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws. 

6. Ibid. 

7. Yoon, Jun. “Putting the ‘anti’ Back into Antitrust: The Need for Antitrust Reform in the Digital Age - Harvard Law School: Systemic Justice Project.” Harvard Law School Systemic Justice Project, March 8, 2022. https://systemicjustice.org/article/putting-the-anti-back-into-antitrust-the-need-for-antitrust-reform-in-the-digital-age/. 

8. Murray, Seb. “Why Google Dominates the Search Engine Market.” Knowledge at Wharton, March 17, 2025. https://knowledge.wharton.upenn.edu/article/why-google-dominates-the-search-engine-market/. 

9. Laidler, John. “Harvard Professor Says Surveillance Capitalism Is Undermining Democracy.” Harvard Gazette, November 9, 2023. https://news.harvard.edu/gazette/story/2019/03/harvard-professor-says-surveillance-capitalism-is-undermining-democracy/. 

10. Ibid. 

11. Ibid.

12. Duffy, Clare, Auzinea Bacon, Lisa Eadicicco, and Emily Condon. “Spinning off Instagram, the Decline of ‘friending’ and Other Takeaways from Mark Zuckerberg at the FTC Monopoly Trial | CNN Business.” CNN, April 16, 2025. https://www.cnn.com/2025/04/16/tech/mark-zuckerberg-testimony-meta-ftc-trial/index.html?Date=20250416&Profile=CNN%2CCNN%2BInternational&utm_content=1744843762&utm_medium=social&utm_source=facebook. \

13. Ibid. 

14. Laidler, John. “Harvard Professor Says Surveillance Capitalism Is Undermining Democracy.” Harvard Gazette, November 9, 2023. https://news.harvard.edu/gazette/story/2019/03/harvard-professor-says-surveillance-capitalism-is-undermining-democracy/.

15. Harvard Law Review. “United States v. Google, LLC.” Harvard Law Review, January 11, 2025. https://harvardlawreview.org/print/vol-138/united-states-v-google-llc/. 

16. “U.S. v. Microsoft Corp., 253 f.3d 34 (D.C. Cir. 2001).” Justia Law. Accessed May 24, 2025. https://law.justia.com/cases/federal/appellate-courts/F3/253/34/576095/. 

17. Ibid. 

18. Ibid.

19. Ibid. 

20. Hlr. “United States v. Google, LLC.” Harvard Law Review, January 11, 2025. https://harvardlawreview.org/print/vol-138/united-states-v-google-llc/. 

21. Ibid.

22. Nguyen, Stephanie T. “Facebook, Inc., FTC V. (FTC v. Meta Platforms, Inc.).” Federal Trade Commission, April 15, 2025. https://www.ftc.gov/legal-library/browse/cases-proceedings/191-0134-facebook-inc-ftc-v. 

23. “Federal Trade Commission v. Meta Platforms, Inc., No. 1:2020CV03590 - Document 384 (D.D.C. 2024).” Justia Law. Accessed May 24, 2025. https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2020cv03590/224921/384/. 

24. Nguyen, Stephanie T. “Facebook, Inc., FTC V. (FTC v. Meta Platforms, Inc.).” Federal Trade Commission, April 15, 2025.

25. Nguyen, Stephanie T. “FTC Sues Facebook for Illegal Monopolization.” Federal Trade Commission, July 19, 2023. https://www.ftc.gov/news-events/news/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization. 

26. Hamilton, Isobel Asher. “Emails Show Mark Zuckerberg Personally Approved Facebook’s Decision to Cut off Vine’s Access to Data.” Business Insider, December 5, 2018. https://www.businessinsider.com/facebook-documents-mark-zuckerberg-restricted-vine-data-access-2018-12. 

27. “Federal Trade Commission v. Meta Platforms, Inc., No. 1:2020CV03590 - Document 384 (D.D.C. 2024).” Justia Law. Accessed May 24, 2025. https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2020cv03590/224921/384/. 

28. Sykes, Jay. “Antitrust Reform and Big Tech Firms.” Congress.gov, November 21, 2023. https://www.congress.gov/crs-product/R46875. 

29. Crandall, Robert W., and Thomas W. Hazlett. “Antitrust Reform in the Digital Era: A Skeptical Perspective.” Antitrust Reform in the Digital Era: A Skeptical Perspective | The University of Chicago Business Law Review. Accessed May 24, 2025. https://businesslawreview.uchicago.edu/print-archive/antitrust-reform-digital-era-skeptical-perspective. 

30. Durbin, Richard. “S.2992 - 117th Congress (2021–2022): American Innovation and Choice Online Act.” Congress.gov. Accessed May 24, 2025. https://www.congress.gov/bill/117th-congress/senate-bill/2992.

31. Crandall, Robert W., and Thomas W. Hazlett. “Antitrust Reform in the Digital Era: A Skeptical Perspective.” Antitrust Reform in the Digital Era: A Skeptical Perspective | The University of Chicago Business Law Review. Accessed May 24, 2025. https://businesslawreview.uchicago.edu/print-archive/antitrust-reform-digital-era-skeptical-perspective. 

32. Romanoff, Tom. 2022. “Analyzing the Open App Markets Act.” Bipartisan Policy Center. https://bipartisanpolicy.org/explainer/analyzing-the-open-app-markets-act/.

33. Ibid.

34. Ibid.

35. Klobuchar, Amy. 2024. “Klobuchar Reintroduces Bill to Promote Competition and Improve Antitrust Enforcement.” Klobuchar Senate. https://www.klobuchar.senate.gov/public/index.cfm/2024/5/klobuchar-reintroduces-bill-to-promote-competition-and-improve-antitrust-enforcement.

36. Ibid.

37. Ibid.