By John O. McGinnis & Linda Sun, Wall Street Journal
The Ninth U.S. Circuit Court of Appeals on Tuesday reversed a district judge’s ruling that imposed antitrust liability on Qualcomm, a major U.S. telecommunications manufacturer. The ruling was a loss for the federal government—and also a victory. The Federal Trade Commission brought the case; the Justice Department successfully argued that it threatened national security by helping the Chinese company Huawei.
FTC v. Qualcomm highlights the confusion created by separate antitrust enforcement agencies. Because of an oversight by the lawmakers who drafted the Federal Trade Commission Act of 1914, the Justice Department and FTC have overlapping authority to enforce antitrust law. This dual setup has long generated turf wars. But modern technology has greatly exacerbated the deficiencies of the two-headed approach. Dual enforcement makes it harder to integrate antitrust enforcement with foreign policy, increases uncertainty in the sector most important to economic growth, and undermines the government’s capacity to protect citizens’ privacy.
The widening scope of computational technology entangles antitrust policy with international politics. Innovations in hardware and software introduce novel methods of espionage and cyberwarfare such as computational propaganda, trolling and sophisticated hacking. With China and Russia engaging in information warfare, America is forced to defend itself in a technological cold war.
Ceding control over communications technologies to foreign powers leaves the U.S. vulnerable to surveillance and to attacks on infrastructure. As both the Obama and Trump administrations recognized, antitrust enforcement can impede domestic technological advancement by giving foreign companies—collaborating with foreign governments—a competitive advantage. The increased importance of antitrust to national security makes it imperative that enforcement be left to the Justice Department. Unlike FTC commissioners, the department’s leaders serve at the pleasure of the president, who has a wider perspective and more substantial tools to protect the country.
