On June 28th, a federal judge named James E. Boasberg issued what appeared to be a stunning rebuke of the government’s efforts to break up Facebook over alleged antitrust violations. In two opinions of more than fifty pages each, Boasberg seemed to accuse the Federal Trade Commission and a coalition of forty-eight state attorneys general—the two parties that have filed antitrust cases against Facebook—of basic errors and miscalculations that are almost embarrassing, suggesting in the former case that the F.T.C. failed to define the market that Facebook operates in, and in the latter that the states waited too long to act. The Facebook cases were a central part of what has become a bipartisan push to restrain major technology companies, which also include Google, Amazon, and Apple. These companies have, over the last decade, grown into sprawling entities that mediate or control large portions of the media, advertising, retail, social-networking, and communication markets. The Justice Department and dozens of states filed similarly ambitious cases against Google last fall, and some antitrust experts have been predicting that a suit of similar scale will be filed against Amazon in the near future. In Congress, antitrust legislation aimed at the big technology firms is one of the few areas in which Republicans and Democrats have found reasons to coöperate—although often different ones—and several draft bills are in development.
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The collapse of the government’s Facebook cases would represent a significant blow to this larger effort. A close reading of Judge Boasberg’s opinions, though, suggests that the battle is far from over. Regarding the F.T.C. case, the judge says that he’s not dismissing the entire case but merely suggesting that the F.T.C. rework it to address its weaknesses and then file it again within thirty days. One line in particular is likely to cause displeasure within Facebook’s executive offices: “the agency is on firmer ground in scrutinizing the acquisitions of Instagram and WhatsApp,” Boasberg writes. “The Court rejects Facebook’s argument that the FTC lacks authority to seek injunctive relief against those purchases.” The F.T.C. has stated that it wants to force Facebook to undo the acquisitions of Instagram and WhatsApp because they were anti-competitive; Boasberg suggests that the matter is a legitimate one to pursue. After looking over the opinion, George Hay, a law professor at Cornell University and a former antitrust official at the Justice Department, told me, “The judge has given them a road map.”