FTC Commissioner Andrew Ferguson: Must Prosecute ‘Unlawful Collusion’ Between Tech Platforms

Federal Trade Commission (FTC) Commissioner Andrew Ferguson on Monday urged the antitrust commission to investigate “unlawful collusion” between big tech platforms and stop advertiser boycotts, which he believes threaten competition.

Ferguson noted that Commissioner Melissa Holyoak proposed reviving President Trump’s Executive Order 13925 to promote transparency regarding big tech’s content moderation and censorship practices.

“When Americans’ ability to engage in robust public debate on issues of national importance is at stake, no stone should be left unturned. The Commission should undertake these investigations,” he charged.

Ferguson, who is a top contender to replace FTC Chair Lina Khan, said that the government should use antitrust laws against any platforms limiting free speech:

We should address not just censorious conduct specifically, but also investigate the structural issues that may have given these platforms their power over Americans’ lives and speech in the first place. In particular, we must vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly. We must prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms. [Emphasis added]

Ferguson noted that the major online platforms all censored in “lockstep,” which raise questions of antitrust violations if they made an agreement to censor:

For years, the major speech platforms seemed to censor in lockstep. They banned dissent on the origins of COVID-19, mask mandates, the efficacy and safety of COVID-19 vaccines, transgenderism, and the integrity of the 2020 election. Every major speech platform— Snapchat, Facebook, Twitter, Instagram, and YouTube—banned President Trump roughly contemporaneously in early 2021.2 And this phenomenon was never more obvious than in 2020, when major Big Tech platforms simultaneously banned reporting on, and discussion of, the Hunter Biden laptop story.

The antitrust laws generally do not forbid competitors from engaging in unilateral, parallel conduct—that is, identical or substantially similar conduct that occurs at about the same time but coincidentally.4 They do, however, prohibit agreements among competitors not to compete. If the platforms colluded amongst each other to set shared censorship policies, such an agreement would be tantamount to an agreement not to compete on contract terms or product quality. “[A]s far as the Sherman Act … is concerned, concerted agreements on contract terms are as unlawful as boycotts.

He contended that in Missouri v. Murthy, discovery found the “shocking extent” of the collaboration between the White House, Centers for Disease Control and Prevention (CDC), FBI, CISA, State Department, and big tech firms to “suppress dissident speech.”

Ferguson said that another danger to free speech is the prospect of a group advertising boycott, noting that one was led against X, formerly Twitter, after Elon Musk purchased the platform. He said that the boycott was organized by the Global Alliance for Responsible Media (GARM). Newsguard, which has a browser extension to provide ratings based on the alleged trustworthiness of a news outlet, can rate websites however it likes, but “antitrust laws do not permit third parties to facilitate group boycotts among competitors.”

“Censorship, even if carried out transparently and honestly, is inimical to American democracy. The Commission must use the full extent of its authority to protect the free speech of all Americans,” Ferguson said concluded in his statement. “That authority includes the power to investigate collusion that may suppress competition and, in doing so, suppress free speech online. We ought to conduct such an investigation. And if our investigation reveals anti-competitive cartels that facilitate or promote censorship, we ought to bust them up.”