Facebook is big. Possibly too big. Which is why the chorus of experts and former Facebookers who think it’s time to break the company up is getting louder. Last Thursday, Facebook co-founder Chris Hughes wrote a mammoth op-ed in the New York Times about why the company that made him very wealthy should be less powerful. In his view, the way to do that is to make the market more competitive. To do that, Hughes recommends (among other ideas) severing Instagram, WhatsApp, and Messenger from the Facebook mothership.
Hughes isn’t the only one worried that Facebook’s scale, design, and social networking dominance allow the vast dissemination of hate and misinformation. In March, Sen. Elizabeth Warren shared an ambitious proposal to undo Facebook’s purchases of Instagram and WhatsApp, among other antitrust actions that would reduce the power of massive tech platforms. There’s now a campaign, called Freedom From Facebook, urging the Federal Trade Commission to break up the company. On Sunday, another presidential contender, Sen. Kamala Harris, said she also thinks the feds should look into amputating Facebook’s subsidiaries. Even the odd Republican is antitrust-curious. “I think Facebook is an extremely creepy company. I don’t know if they’ve done a good job with anything,” Sen. Josh Hawley said in an interview with the Verge in March. “We need to have a discussion, though, about what antitrust looks like when applied to the tech world.”
So where is this momentum taking us? Right now, the FTC is reportedly deliberating how big of a fine it will slap on Facebook following an investigation after the Cambridge Analytica scandal into whether the social media giant broke an FTC privacy decree. Since 2011, Facebook has been legally required to get permission from users before sharing private data about them beyond what they’ve explicitly agreed to, yet for years the company allowed thousands of developers to not only collect data from people who downloaded their Facebook apps but also data on their friends. That fine could be in the billions. But for a company as big as Facebook, a fine alone may feel more like a speeding ticket. Following a year in which the company faced a PR crisis seemingly every week, Facebook has reformed some of its data-collection practices and is now in the midst of a “pivot to privacy.” Even Mark Zuckerberg is talking about more government regulation—though he would certainly prefer a version that does not turn Facebook into a 21st-century Ma Bell. His problem is that “break up Facebook”—like “abolish ICE” and the “Green New Deal”—could quickly become an idea within the bounds of serious discussion.
There are a few places antitrust enforcement could happen. A regulatory agency like the FTC could try to break Facebook up on antitrust grounds—and as it happens, the FTC recently formed a task force in its competition bureau to keep tabs on the tech industry’s monopolistic streak. It could happen in the courts, if the Department of Justice decides to challenge the company for being anti-competitive. (While the DOJ recently tried and failed to stop the merger between AT&T and Time Warner, the government hasn’t brought a major antitrust case since Microsoft in the late ’90s.) Congress could also try, either by updating current antitrust law or even creating a new federal agency to specifically regulate social media companies. Whatever happens, it’s unlikely to happen fast—if it happens at all. And if it happens at all, the immediate result would almost certainly be a protracted legal battle.
No matter if the Department of Justice or the Federal Trade Commission decides it’s time to try to take a hatchet to Facebook, the agencies will have to make a solid, factual case for doing so. When the Department of Justice sued Microsoft for being anti-competitive, the size of the company alone wasn’t enough to make the case. “Even though everyone was saying, Hey look, [Microsoft] is 98 percent of the PC market. How is that not an antitrust violation?, the government still had to assemble a mammoth record of how Microsoft was abusing its market power in order to maintain its monopoly,” said Harold Feld, a senior vice president at the tech policy think tank Public Knowledge. Likewise, if a case against Facebook is going to be successful, regulators and lawyers are going to need to have a strong body of evidence to support their case.
States could also get in the mix. If enough attorneys general pool their resources to make a strong case for how Facebook has harmed competition in their states, the case to break up Facebook could gain a new urgency, according to Feld. But harming competition might not be the easiest thing to prove. What feels more obvious is that Facebook has become so big that it can’t keep consumers safe—from grave mishandlings of user data to facilitating the virality of hate to its inability to shut out state-sponsored propaganda. But even so, theories of consumer harm in antitrust tend to revolve around price, and Facebook’s product doesn’t cost a dime.
To make the case about competition, lawyers and policymakers will have to show that once Facebook got so big, the company used its power to protect itself from potential rivals. One item they might unearth is how Facebook decided to cut off Twitter’s popular social video app Vine from allowing Facebook users to find friends on Vine, an example Hughes highlighted There are also multiple reports of how Facebook systemically worked to squash competitors like Houseparty, a video chat app that Facebook realized was gaining traction, by covertly looking at what users were doing off Facebook through another Facebook-owned app that advertised itself primarily as a privacy tool. That was shady! But it’s unclear if it would concern regulators.
As for Congress: Hughes suggested lawmakers create a new regulatory agency that specifically monitors and makes rules for big tech companies to follow, like protecting user privacy. That agency could also conduct the research necessary to build a robust case for breaking the big platforms up, Feld told me. But that would take, well, an act of Congress. And while it’s not out of the question—Congress did create the Consumer Financial Protection Bureau after the 2008 financial crisis—it’s a big lift. Election season is just around the corner, and it’s safe to assume that Republicans and Democrats are imagining all kinds of ways not to work together to get something like this done.
But just because breaking up Facebook isn’t easy doesn’t mean it’s not going to happen. Republicans and Democrats both have their reasons for picking on Facebook—the GOP version generally involves haranguing the company about political “bias”—and they’ve all correctly sensed that there are public frustrations to tap. It was just earlier this week that we learned that WhatsApp had a massive vulnerability that allowed hackers to inject spyware into users’ phones just by placing a call through the app. And only a few weeks before that, Facebook had to fess up to yet another report of how it mishandled the data of users who are supposed to be able to trust the company. This time, more than 540 million people were affected.
Facebook clearly hasn’t done an ace job of cleaning up the hate and disinformation that thrive within its walls—or of protecting users who trust the company with the personal details of their lives. There certainly seems to be enough urgency for some kind of regulatory crackdown, like new data-privacy rules. Sculpting an argument for a successful antitrust challenge is going to be harder, but it’s not impossible. If enough lawmakers and federal agencies agree enough is enough, it could happen. After all, with every ugly news item about the social network, the case that Facebook is out of control kind of makes itself.
