The path forward for mergers and monopolies.

Dave Bittner: Hello, everyone, and welcome to Caveat, N2K CyberWire's privacy surveillance, law, and policy podcast. I'm Dave Bittner. And joining me is my co-host Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hey there, Ben.

 

Ben Yelin: Hello, Dave.

 

Dave Bittner: Today, we welcome our special guest, N2K CyberWire colleague and editor of the Caveat Newsletter, Ethan Cook. While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. [ Music ] All right, we are back. And Ben, we have another special show today. It is my pleasure to welcome to the show our N2K CyberWire colleague and editor of our Caveat Newsletter, Ethan Cook. Ethan, welcome.

 

Ethan Cook: Hey, everyone. How you doing?

 

Dave Bittner: We are doing great. For our audience who is unfamiliar with you, can you give us a little bit of what they should know about you?

 

Ethan Cook: Yeah, absolutely. So I am the primary writer and editor of the Caveat weekly newsletter. I've been working on that for some time now. I'm the person who you see every Thursday when you get that email in the afternoon, who is sending you, you know, detailed breakdowns of some major stories that are going on as well as some, you know, smaller things that are happening in the world. And I've been working with N2K for several years now and have been a longstanding policy fan and kind of, I guess it is a hobby of mine, so to speak.

 

Dave Bittner: Right. Well, and I guess it's a good opportunity as a reminder for our listeners that if you have not yet checked out the Caveat Newsletter, what are you waiting for? Get in there on our website and make sure that you are subscribed so you can see all the great things that Ethan puts in there every week. So, Ethan, you are going to be guiding us through today's episode with the things we're going to talk about here. So where would you like to begin?

 

Ethan Cook: Yeah, absolutely. So I think some context is in order. So, you know, we thought about this, you know, with the incoming administration, obviously no matter what happens, whenever you have a new party taking power or just even from party to party, there's always going to be some shifts in how policy is approached. And this felt like a really good opportunity to do some really good in-depth analysis on what are some of the major, kind of more tech related/cyber related policy sectors that we're going to see change, maybe not to high degrees, maybe some very high degrees with the incoming Trump administration. And we're going to do this once a month where, come on, talk about one of these big policy areas and really break down some of the major happenings there, or speculation, or some of the things that have already seen some movement. And for this special edition, we're going to talk about antitrust, which may not seem necessarily tech related at first, but when you think about it, you know, when you look at some of the major companies in the world, especially within the US, some of the first ones that have come to mind are all tech companies. Google, Apple, Amazon, Microsoft, et cetera.

 

Dave Bittner: Yeah. Can I shift over to Ben here? I mean, when you think of the topic of antitrust and where we kind of find ourselves in this moment, how would you describe it?

 

Ben Yelin: I think this is a perfect topic to cover because I think it's very representative of the major policy change we've seen over the past four years. One of President Biden's major initiatives, though it was kind of under the radar, was to reinvigorate our federal agencies to pursue antitrust policies. He did so most famously against Google. But as you said, I mean, this is pretty broad across the tech industry, and it's had a lot of upstream and downstream effects. We can talk about the policy impacts which are significant and the lingering questions. But also, and I'm curious to see if you agree with this, Ethan. There's been kind of a vibe change in Silicon Valley against Biden and the Democrats and for Trump and the Republicans. And I think on first blush, it seems to be something that's a self-professed cultural change that they're complaining about things like wokeness and all of that stuff. And I'm wondering if a lot of that has to do with the Biden administration's aggressive use of antitrust policies and how that's going to impact what Trump does now that Elon Musk is living in Mar-a-Lago.

 

Ethan Cook: Yeah.

 

Ben Yelin: So I'm curious to hear what you think about that as well.

 

Dave Bittner: Yeah, unpack it for us, Ethan.

 

Ethan Cook: Yeah, so I think, you know, Ben, you hit it right on the head. The best way to describe Biden, and experts have kind of echoed this statement, is that, you know, Biden's four years in office with antitrust was a very clear departure from the past 40 years of antitrust policy. Which better way to describe that is a lack of antitrust policy where we just kind of let everyone go wild. And this is how you get these massive companies who have GDPs or have annual valuations of, higher than GDPs of other nations, right? And so with Biden coming in, you know, he kind of revolutionized how we approach this. He not only empowered the FTC with Lina Khan to go after it really hard, but also used the DOJ's antitrust division with- led by Jonathan Kanter, to really kind of push this aggressive antitrust approach. And I think that definitely turned Big Tech off from the Democratic Party and that, you know, to the way you described it, Ben, kind of this smoothing up to the Republican Party as they begin to prepare to take power over the coming weeks. You know, talking about how we're ending DEI initiatives, we're doing this, you know, we're ending the woke or whatever it may be, ending fact-checking on Facebook, for example, as a way to, I think, signal to the Republican Party or at least attempt to signal that, "Hey, you know, we're one of you guys. There's no need to continue this super harsh regulatory environment that we've seen for the past four years."

 

Ben Yelin: Yeah, one thing that's really interesting to me is there was kind of a faction of the Republican Party that had a little flirtation with antitrust policies and even some fandom of Lina Khan. One of Lina Khan's fans, a self-professed Khan-servative, was --

 

Dave Bittner: Wait a minute. I see what you did there.

 

Ben Yelin: I know, I know.

 

Ethan Cook: That was good.

 

Ben Yelin: It was this guy who came up with it, was attorney general nominee, one-time attorney general nominee Matt Gaetz. Another adherent, somebody who has praised Lina Khan and her antitrust policies is Vice President-elect J.D. Vance.

 

Ethan Cook: I was going to say the same thing. Vance was a big supporter as well.

 

Ben Yelin: Yeah, which is really interesting. And I'm wondering how much influence they're going to have in the Trump administration now that Big Tech also has the ear of Donald Trump. And I think a fascinating dynamic here is we all know Donald Trump to be very responsive to the last person that he talked to. And I'm just wondering, like who more has his ear? This kind of new populist wing of the Republican Party which has been supportive of antitrust efforts, especially as it relates to Big Tech, or the Big Tech oligarchs who- it's not just Musk. I mean, as you mentioned, Zuckerberg, as we're recording this, he was down in Mar-a-Lago this weekend. I mean, everything he's done for the past few months seems to me to be trying to curry favor with the incoming Trump administration and Trump himself. So it's a fascinating dynamic in that regard.

 

Dave Bittner: Can we talk a little bit about the history? Maybe the two of you can educate me here. I mean, I- My recollections of big antitrust cases, you know, I'm old enough to remember AT&T being broken up, but then also the Microsoft case, I guess back in the '90s. What is the- You say that, you know, there are some folks on the Republican side who are in favor of some of these antitrust movements. What is the Republican argument for- the conservative argument, I suppose I should say, for antitrust enforcement?

 

Ben Yelin: Should I take that, Ethan, or you want to take that?

 

Ethan Cook: No, yeah, I can take that one.

 

Ben Yelin: Yeah, yeah.

 

Ethan Cook: So I think, as Ben said, there are different factions and obviously I think there's nuance to a lot of things. I think the best way to describe where current conservative overall, you know, as a kind of a viewpoint, is they are very down on big tech censorship is the best way to do- I think is a huge element of it. So I think, you know, while traditionally they may have been more OK with, you know, major corporations like Verizon or things like those who really don't get involved in what is said and how it's said, obviously social media censorship has been a huge conversation talking point for the past couple years and, you know, the ability for algorithms to kind of dictate what we see and who can see it. You know, we're seeing that kind of play out to some degree with the, you know, TikTok and there's a- their whole argument, it's a First Amendment defense point stand there and there's, you know, there's all these kind of playing out with how social media companies legislate what can be said online and what can't be said online. And I think there is a dynamic where, you know, and that's kind of why we're seeing Zuckerberg kind of curry favor and the fact-checking program. But I think, you know, going kind of to that history point you were talking about, there is- the past couple of years have- we've seen this massive step up. I mean, Ben mentioned it earlier with the Google antitrust landmark case, which, you know, for those who don't quite remember, earlier this year, the US courts ruled that Google is a monopolist. They actually called it a monopolist in their ruling. And they acted as a monopoly to maintain that monopoly. And with that outcome, it was kind of seen as this light at the end of the tunnel with maybe we're going to see some of these company breakups that we haven't seen for a very long time. And while the Biden administration was very adamant that it wanted to pursue a company-wide breakup and make it divest from its search engine monopoly, the Trump administration has kind of already put some, you know, doused some of those hopes when they came in. Some statements were made by the administration that they are looking to not necessarily break up companies. But I think now rather than pursuing breakups that we would have seen under Biden or Harris-led administration, or attempted breakups, I should say, the goal now I think is more of a- more traditional punishment, more of a kind of financial penalty perspective or regulatory penalties rather than forcing divestment across the board.

 

Dave Bittner: Ben, what do you make of that?

 

Ben Yelin: Yeah, I think that's exactly right. I think there- Sometimes it's hard to distinguish between those two policies because sometimes the sanctions themselves can feel like breaking up the big companies. But it is really distinct. I'm curious to see how you would apply these sort of two-policy approaches to something that's very currently in the news and that's the potential breakup of TikTok. By law, TikTok is required to sell or to be sold. Divestiture must occur. I'm trying to figure out the right nomenclature here, from ByteDance lest TikTok be banned in the United States. I'm wondering if you see this as an extension of antitrust policies. This was a bipartisan bill enacted in Congress, or if you see this as a special case that just has to- that implicates national security in a way that some of these other antitrust cases do not.

 

Ethan Cook: Yeah, I would definitely say I think it would lean a little bit more towards the national security perspective. I know they just began, the Supreme Court being, they just began to hear the initial arguments last- at the end of last week on, I believe, Friday and, you know, the initial reactions to the- TikTok's defense which was that, you know, freedom of speech, that by being forced to sold they are- forced to sell, they are, you know, infringing on the company's right to have this as a kind of verbal platform and they're infringing on users because it could shut down their access to social media. And I, you know, we saw justices, some quotes kind of already emerge out where justices were initially reacting to this not in the best way with arguments saying, well, we're not really- the Congress is not forcing you to- not preventing you to say this. We're just saying that you can't say it on a company- on a Chinese-owned platform is more so the argument.

 

Ben Yelin: The oral arguments did not go well for TikTok and I continue to think --

 

Ethan Cook: No.

 

Ben Yelin: -- we are collectively underestimating the chance that in the next five days TikTok is going to be shut down in the United States. But I guarantee that that's not necessarily a full-on antitrust story. Yeah, I think Google is the best example because it was kind of a multi-front attack. It's not just Google is a monopoly per se, it's what they've monopolized, which is advertising, which is the search engine itself. And while the Microsoft cases were high-profile, since then we just haven't seen this type of frontal attack. I think because the prevailing ideology was that kind of a laissez-faire attitude, let the market decide what product people like best. There used to be competition among search engines in the early 2000s, and then Google created a superior product that was the search engine to end all search engines. And any action that they were taking to consolidate those gains were reactions to market interest. The fact that people were choosing with their eyeballs in their pocketbooks to use Google services. I mean, I'm kind of curious from your perspective here, what do you think changed, like what was kind of the impetus behind this movement to finally go after some of these Big Tech companies?

 

Ethan Cook: Yeah, so I think, you know, this is kind of this interesting dynamic where, and this is going to apply to the Trump administration as well, where I think initial reactions, you know, you look at, you know, Trump, who's always seen as this pro business model, right? Big fan of business, obviously comes from a business background, that he is going to be super friendly to businesses. And I think that is one way to look at it, but I think there's another perspective which also applies to the Biden administration, which is a more populist approach that centers around, you know, kind of doing what people want, which is why we have this kind of huge reaction to Big Tech censorship where it's very popular right now amongst people. I mean, if you look at poll demographics, that people are not a fan of Big Tech companies, they're not a fan of censorship. There's a lot of pushback right there. And I think that when you look at a lot of the cases that Biden has been pursuing, they are rooted in kind of these new age line of thinking for antitrust policy. They're not using conservative or, you know, traditional conventional economic assessments, as you said, you know, market dictations and what, you know, what the market says, you know, what are consumers saying. It's more about what are people feeling. You know, are people feeling that this is going to be impactful to labor markets? Is this going to be impactful to services, et cetera? And we've seen kind of this step away from traditional antitrust and merger assessments and pushing more into a kind of theoretical, less based in like traditional legal world, which is why we've seen cases against Apple. Google has multiple cases against them, Amazon has a case against them, Meta, et cetera. And I think, ironically, a lot of these cases were actually started by the first Trump administration, which, you know, a lot of people don't realize --

 

Ben Yelin: Right, right.

 

Ethan Cook: -- they were continuations of- Biden continued and, you know, was actively still pursuing them. And which is why, you know, kind of coming back to with what we see over the next four years, it's likely that Trump will continue these cases. I mean, he started half of them himself. I think the major difference is going to be just what aims they're ending- they're trying to pursue. And I think, you know, to your point, Ben, with the currying of favor, I think that's going to come into a far greater play of what are, you know, what are the outcomes. And if a deal can be negotiated where, you know, maybe more favorable terms can be met in the punishment, the Trump administration is not going to pursue as aggressive where I think the Biden administration had that just full out aggressive, whatever we need to do to end this monopoly in our view.

 

Dave Bittner: We'll be right back. [ Music ]

 

Ben Yelin: I think, and not to get too much into the political theory here, but I think Biden and his allies had a political theory of the case. And this goes beyond antitrust policy, but I think antitrust policy is a huge portion of it. The Democratic Party over the past couple of decades has lost a lot of working class support. They've become more of a- less of a populist coalition and more made up of college educated voters. And I think Biden being this like scrappy guy from Scranton was really keen on reversing that. And I think that informed, especially early in the administration, some of his policies, like going big in terms of fiscal spending on the COVID recovery bill and on the Inflation Reduction Act. I think his theory in, political theory in pursuing aggressive antitrust policy was to win back some of this populist street cred, and he got some credit for it in some progressive quarters. There are people who are Biden fans because of Lina Khan and the actions of the DOJ and the FTC. I also think his political theory of the case kind of failed. Biden, after he dropped out of the race, we saw with Harris, Democrats actually lost ground not only with non-college White voters compared to previous election cycles, but non-college voters of all races. So I'm sort of wondering out loud, like politically, why didn't this effort break through? Why didn't it re-establish the Democratic Party as a Populist Party working on behalf of consumers? Why did the political case fail? Or was it not that it failed, it was just superseded by other considerations?

 

Ethan Cook: Yeah, I mean, that's a great question. And I know you don't want to get too much into the theory aspect of it, but I think, you know, we can point to various aspects whether it could be, you know, maybe they- these wins weren't celebrated enough or, you know, to the point maybe they came too late. You know, the Google case, you know, with being ruled as a monopoly came this year.

 

Ben Yelin: Right, right.

 

Ethan Cook: So, you know, four years and you get one major ruling. Sure, that ruling is massive, but, you know, maybe if this was a sustained effort over four years where you had, obviously court cases can take some time, but I think, you know, it's really hard to look at one individual case and say, "Ah, we've seen from an- maybe from an, you know, an average consumer's perspective, oh, you know, we're seeing this massive tide change. You know, oh, maybe we're starting to see this tide change, but it's maybe a little bit- too little too late to really get those influences."

 

Ben Yelin: I think that's a great point. I think there's a lot to that. And also you'd expect antitrust actions to really be like felt in the gut by consumers. I always think of antitrust in the context of an industry where there's been a ton of consolidation through my lifetime. That's the airline industry. Flying used to be fun. I don't know if that's believable to young people out there.

 

Dave Bittner: Yeah.

 

Ethan Cook: It is not for me.

 

Ben Yelin: Yeah.

 

Dave Bittner: People used to dress up to get on airplanes.

 

Ben Yelin: Seats were more comfortable, everybody got a meal. Now, flights in some circumstances were more expensive in relative terms back then, and so perhaps we have improved affordability in some contexts. But a lot of why flying sucks is because there's just no competition anymore. There used to be when the airline industry was deregulated. I mean, we had a lot of players in the field. And now it's- we have a couple of low-cost carriers, but really like we have three or four major domestic carriers. And I think people kind of instinctively understand that when that happens, things got worse for the consumer. We started having to pay because all of- the four companies were doing it, now everybody had to pay for checked baggage. And I'm wondering like, what did the average person either get out of this antitrust frontal attack on Big Tech companies or would they have gotten had these cases come out sooner? And would it have been something that was noticeable to the average consumer?

 

Ethan Cook: Yeah, I think, you know, with Google search engine, I don't know if that would have had the impacts, so to speak, for the average consumer to really process. But I think, you know, let's, you know, take another one of their major cases that the Biden administration was pursuing that the Trump administration will likely take up, which is the case against Apple, which in that case they are arguing that, you know, Apple has intentionally made it more difficult for the average consumer to get off their software and hardware solutions by kind of trapping them in this cycle. That's, you know, the DOJ is alleging that, and I think because of that, you know, but if you talk to someone who doesn't really know tech or any of these things, they think Apple is a fantastic product.

 

Ben Yelin: Right.

 

Ethan Cook: And it should- It's this almost disconnect where, you know, they see that as, why are you going after Apple? You know, Apple gives this great product. Everything's, you know, works together. I don't have to, you know, send things. You know, I can respond to texts on my computer. I have my Apple watch, et cetera, all these various products that all work together very simply and very easily. And the DOJ is coming out saying, "Yeah, all those things that you think are really great are actually really bad." And I think that makes it really hard for consumers to understand and, you know, maybe to that point, see this as a win, that we're pursuing these cases for antitrust.

 

Ben Yelin: Yeah, I think that's right on. And I think that's why, like a hundred years from now, when you, like, give a three-sentence summary of the Joe Biden administration, I just don't think, despite the fact that he was the most aggressive antitrust president at least of the 21st century, possibly since FDR, I think it kind of didn't permeate the way he expected it to for some of the reasons that we've talked about. And I think that's a huge part of the story here because that can help inform how Trump sees it. I mean, Trump is a populist. He's also somebody who prefers to be liked. He is very much in tune with the views of his own base, and he has very good political instincts. And I'm wondering if Trump saw this Biden experience over the past four years with aggressive antitrust actions that failed to accrue political benefits for him and if it's giving Trump potential second thoughts. And I don't know that that's the case. It's just something to kind of throw out there.

 

Ethan Cook: Yeah, no, I think that's something that's going to absolutely influence the next four years. You know, I think another kind of, to pivot the conversation a little bit, I think another huge aspect that will come up, aside from just raw, you know, kind of going in cases, kind of more traditional antitrust assessments, I think we're also going to see kind of a pullback in how we approach mergers and acquisitions across the country. You know, under Biden, we saw that was another way they attacked antitrust policy rather than, you know, going after companies who are already too large in their view. We also saw them say, "OK, we're also going to prevent companies from getting too large by blocking acquisitions that would have normally been allowed previously by being more- by, you know, increasing the barriers to get in --

 

Ben Yelin: Right.

 

Ethan Cook: -- by, you know, requiring more documentation, et cetera. I think --

 

Ben Yelin: Biggest example of this, just to go, quickly, sorry to interrupt, to go back to the airline industry, was the rejection of the Spirit Airlines and JetBlue merger, which I don't think we would have seen 10 years ago.

 

Ethan Cook: No, I would 100% agree. And I think that this change of ideology, not just, you know, going after companies that are too large, but, you know, preventing them from getting too large, was another huge aspect that I think did not get a lot of traction across people. And if anything, you know, I kind of went under the radar and I would argue that, you know, those 2023 merger guidelines were probably one of Biden's most, you know, not including, you know, congressional actions and getting something passed through, you know, going through Congress, one of his, you know, largest wins from a policy perspective for his administration in terms of, you know, putting things out, a comprehensive document that had wide, sweeping impacts, not just, you know, shutting down deals, but kind of reshaping how we think about these things. And I think that because it was kind of so under the radar and only really serviced in, you know, at least from what I could find and look into, was kind of just pissed off big business.

 

Ben Yelin: Right.

 

Ethan Cook: And I think that we're going to see those guidelines probably go back to what they used to be under- which was the previous 2014 version, which were, to your point, you know, far more friendly and probably would have allowed some of these mergers that would have occurred- that try to occur under Biden to occur under the next administration.

 

Ben Yelin: In your heart of hearts, do you think that Jeff Bezos and Mark Zuckerberg and Elon Musk truly believe in their hearts that they should support Trump because he's less woke? He's not in favor of the so-called woke mind virus. Is it really about these cultural issues, or do you think that's a fig leaf for their opposition to the policies on- Democratic policies on mergers and acquisitions and antitrust? I don't have a good answer to this question. I'm wondering what yours is.

 

Ethan Cook: Yeah, I would say I, you know, I don't know for Elon because Elon's kind of his on his own world.

 

Ben Yelin: Yeah.

 

Ethan Cook: Because, you know, I think him buying Twitter now X, he's made no money off that. If anything, probably lost money.

 

Ben Yelin: Yeah, yup.

 

Ethan Cook: You saw how much their debt. So that wasn't clearly an economic move. That was something that was motivated by personal reasons. And if you dive into his, you know, his personal views and things that he said that aren't necessarily as publicly mainstream, he seems to echo some of these mindsets. And I think that for him, this may be genuinely a personal motivation, something he personally believes in or he feels that he should go after.

 

Ben Yelin: Yeah, he seems really red pilled, as they say.

 

Ethan Cook: Yes.

 

Ben Yelin: He actually believes in this stuff. Yeah.

 

Ethan Cook: But I don't know if I can apply that to the other, I guess you want to say Big Tech moguls who seemingly overnight were, "I'm not, you know, I'm not going to make comments or, you know, maybe we have a DEI initiative, but we're not really doing too much." And then as soon as Trump gets elected, oh, now we're flipping. And that, to me, felt very like, oh, it is now politically inconvenient for me to have these policies. It's politically inconvenient for these things because Trump and his base and the people behind him and his administration are going to, you know, go after me for these things. And I think it will be far more better in my interest to remove these things and largely have no impact on me personally, but could have substantial impacts on how my administration- the administration pursues antitrust policy against me.

 

Ben Yelin: Sure, sure.

 

Dave Bittner: I think when- Part of what is at play here in my estimation is that when we saw the rise of these Big Tech companies, you know, Facebook, Google, Twitter, from a policy point of view, it seems to me like the approach was hands-off, right? We don't know where these are going to go. There's never been anything like this before. We are riding the enthusiastic wave of techno optimism that these online platforms are going to bring everyone together. Obviously, there's a lot of money to be made for lots of people. So we're just going to stand back and see what happens. And we got through that phase, and now we're in a different phase where these companies have reached a certain amount of maturity, there's a certain amount of stability, the growth curve has leveled out for them, I think, to a great degree. And many of them are shrinking. Look at Twitter. But the leaders of those organizations are accustomed to being able to do whatever they want. And so, when the specter of not being able to do whatever they want comes up, I think their impulse is to use the tremendous resources that they have at their disposal, both financially and also the public platforms that they have to get their ways. Think there's anything to that?

 

Ethan Cook: Yeah, absolutely. I think there's a huge dynamic. I mean, we've already seen that sort of play out on the state level with a lot of the bills going through that are regulating underage use of social media platforms. You know, Florida was one that, you know, passed the, probably the most aggressive version of it that outright banned anyone under 16. And you've seen them across the US. There's been many states who have been kind of pushing for this more aggressive narrative. And it's been attempted also at the federal level with COPPA, or with KOSA. And, you know, we've seen this kind of push where I think they are, you know, that's obviously a huge revenue hit for these companies to have, you know, portions of their user base outright taken off or to put in, or even, let's say they can keep them to put in a bunch of age verification systems that weren't previously there. Those are, you know, shifts, new application design, et cetera. And I think that those shifts and dynamics do cost them a lot of money. And there is this attempt to kind of reduce the hostility that a lot of America is feeling against these companies that feel, you know, hey, my data is being taken, my children are being exploited, you know, for an algorithm to get more views, et cetera. And now- And that's part of what also, you know, to circle to that conversation, a little bit against TikTok, where there's this element of, you know, in that case, China is exploiting, you know, our young base with algorithms and all these things on top of the other national security concerns. And I think for these companies and these leaders of these companies, they see this as, we need to course correct because we need to continue the past 20 years of dominance that we have had. And this is a genuine threat that could, if you have left untouched, could have significant impacts over the next 10 years.

 

Ben Yelin: It's so funny because, like, some of it seems to me to be kind of situation specific. Like there was a lot of conservative complaining about Big Tech oligarchs having way too much control. And like, Twitter is the new public square and we have to be extremely sensitive about taking down content. And now that, like, some of their guys are in ownership positions at these companies, the views seem to have changed. Anyway, that's just my personal opinion.

 

Dave Bittner: But that's the way the winds blow, right?

 

Ben Yelin: It is. Yeah.

 

Dave Bittner: I mean, that's the way of things.

 

Ben Yelin: It is, it is.

 

Dave Bittner: I'm curious also, is there a mismatch between the cadence of our political cycles and how long it takes for an antitrust case to make its way through the system?

 

Ethan Cook: Yeah, I would --

 

Ben Yelin: Totally.

 

Ethan Cook: -- totally agree with that. And I think the, you know, Ben mentioned earlier, obviously cases can take a little while to get through and, you know, arbitrary four years is- cases can go on for way longer. I mean, as we're seeing, Trump started some of these initial cases in his first administration back in 2019 and 2020. We're in 2025 now, and some of them still haven't even hit sentencing, you know.

 

Ben Yelin: Right, right.

 

Ethan Cook: And we don't even know when they're hitting sentencing. And that, I think, is a dynamic that really makes it hard to consistently go after cases. You know, it's easy over eight years. Not easy, I should say, but it's more streamlined over eight years because if they're, you know, same president can hold that victory, same things. But when you're getting these every four-year shifts, I think that makes it really hard to pursue cases consistently.

 

Ben Yelin: Yeah, yeah. I mean, you can see there are a lot of voters out there who, one of the reasons they were voting against Joe Biden presumably was because Roe v. Wade had been overturned, not realizing like, well, that's actually the fruits of labor that took place during the Trump administration. And then multiply that by 10 on an issue that's far more lower profile that your average voter is just not going to be following very closely.

 

Ethan Cook: Yeah. And even, you know, to kind of go off the Roe v. Wade aspect, that's not even just under Trump, that's also motions that were set in under Obama by blocking nominations there.

 

Ben Yelin: Totally. Yeah.

 

Ethan Cook: So, you know, that was, you know, a decade in the making almost.

 

Ben Yelin: Right, right.

 

Ethan Cook: And I think, you know, that same kind of issue applies to these cases where, you know, it's- these slow burn elements, you know, it's really hard to get consistent wins in eight years, let alone four years when it comes to pursuing legal challenges.

 

Ben Yelin: Yeah.

 

Dave Bittner: Well, let me bring it home then and wrap up with this, where do you think we're headed here? What's the political will? Are we likely heading into an era of continued scrutiny for antitrust? Do we expect that it's going to fall to the wayside? Where do we think we stand here?

 

Ethan Cook: No, that's a great question. And I toyed around with this a lot because, again, initial reaction, you would say, "Oh, Trump, all these, you know, large tech companies are schmoozing up. Elon is his best friend, it seems like." You know, how- What does this look like over the next four years? But then on the flip side, as we mentioned earlier, you have key administration people coming out saying, "We love Lina Khan. We thought she was great." Right? Like, maybe love is a little strong word, but we liked what she did. And I think- And, you know, Biden obviously had a more populous agenda. I think, you know, when we look at what Trump's going to do, I would say over the next four years, we were- we will continue, I would say, with- it's very likely that we continue many of these cases. It simply is just going to be along the lines of we're probably not going to see the aggressive outcomes that the Biden administration saw, and it's going to be a return to more traditional punishments that are going to be viewed as, you know, kind of more slap on the wrist, I guess, is the best way to describe it. Or, hey, you know, maybe we have to do something a little hard, but if we can, you know, negotiate something, then maybe we don't have to be as kind of aggressive in our approach. Regarding policy, I think that is going to return back to a more traditional assessment process, especially in the terms of mergers and acquisitions, where we're going to see, you know, back to that 2014 model, maybe not a full return, but definitely a step back where we will encourage businesses to merge, encourage businesses to grow. And if, you know, I think the Trump mindset will be, you know, grow, grow. And if it becomes a problem or if people don't like it in that populous sense, then we'll, you know, kind of bring the hammer down, but not for a full, you know, kind of destroy the foundation, rebuild it back up, but kind of let's knock you down a peg or two and figure out where we can go from there. So I think we're going to find a middle ground, you know, and I know that may not be as fascinating or as kind of catchy as we would hope as it's going to be, oh, you know, complete continuation or as, you know, disheartening as it's going to be a complete return to what it used to be. But I think it's going to kind of find that middle ground where it's going to be very case dependent and there's- big wins will still be celebrated because that's a great way to galvanize the base and, you know, galvanize support for especially, you know, hot topic issues. But on the back end, a lot of the smaller things that people don't really pay attention to as much are going to continue to be as they were probably back in 2014, et cetera.

 

Ben Yelin: We're going to hold you to that, Ethan.

 

Ethan Cook: Absolutely.

 

Dave Bittner: What's your take, Ben?

 

Ben Yelin: Yeah, I actually agree with that prediction. It's just hard institutionally to put an end. You have to pick your battles because, like, the Justice Department is going to discontinue some cases that the Biden administration pursued, but they can't do that for every case. And I think the fact that there are adherence to more of an antitrust worldview within Trump's inner circle, first and foremost, including the incoming vice president, I think that does mean that this is not going to be like a Romney-Ryan administration of economic libertarianism and ignoring the anti- sort of the antitrust policies that we've seen over the past several years. So I do think they're going to continue them. I think the effect of some of these friendships with Big Tech will have an effect on the margins and I think it would stop some of the most aggressive antitrust actions that we could have seen. But I think your predictions are right on.

 

Dave Bittner: All right, well, let's leave it there, gentlemen. Good conversation. Very much appreciate you joining us here, Ethan. Once again, Ethan Cook is our N2K CyberWire colleague and editor of the Caveat Newsletter. And if you have not yet subscribed to the Caveat Newsletter, please do so right away. [ Music ] That is our show brought to you by N2K CyberWire. We'd love to know what you think of this podcast. Your feedback ensures we deliver the insights that keep you a step ahead in the rapidly changing world of cybersecurity. If you like our show, please share a rating and review in your favorite podcast app. Please also fill out the survey in the show notes or send an email to caveat@n2k.com. This episode is produced by Liz Stokes. Our executive producer is Jennifer Eiben. The show is mixed by Tre Hester. Our executive editor is Brandon Karpf. Peter Kilby is our publisher. I'm Dave Bittner.

 

Ben Yelin: And I'm Ben Yelin.

 

Dave Bittner: Thanks for listening. [ Music ]