Complexity is often used to obscure. Industries such as finance, pharmaceuticals and especially technology are full of examples. Just as programmers may encrypt code or remove metadata to protect the workings of their intellectual property, so can insiders – from technologists to economists to lawyers – using industry jargon and Byzantine explanations of simple concepts. Can defend their business model so that they obscure things. Maybe don’t want the public to understand.
That’s why it’s so significant that in its second major antitrust case filed against Google, the US Justice Department last month not only asked the company to break up its advertising business, but that a jury of people decide whether it should do so. Or not. This is highly unusual for antitrust cases, which are usually decided by a single judge.
It’s a risky move, because it means the DOJ’s antitrust division head, Jonathan Cantor, will have to rebuild the online ad auction business for the masses. But it’s also pretty smart. The federal judges hearing such complex antitrust cases tend to be older, conservative types who have historically been more likely to align themselves with large corporations.
As one legal scholar told me, such judges are reluctant to be seen as people who do not understand complexity, even if it is far beyond their own purview. This may make them more likely to agree with the arguments made by expert witnesses – Nobel laureates who build the auction model, for example – than average people who are more willing to accept that they don’t get it. We do.
It certainly fits my own experience. In my 30 years as a journalist, I’ve been amazed at how often simply saying, “I don’t get it — let me explain it again,” can lead to an “aha” moment. When experts can’t explain a complex concept in simple terms, they either don’t understand it themselves, or are trying to get something at the journalist.
“Technologists often use a lot of magic language to explain fundamental concepts,” says Saffron Huang, a former Google DeepMind engineer who now runs the Collective Intelligence Project, a policy organization that aims to educate the public about technology. “But it’s not magic. This is linear algebra.
Breaking down complexity is something this Department of Justice is very serious about. “Think about what happens when you check the weather forecast or buy your morning coffee,” Kanter said a year ago in a speech about modernizing merger guidelines. “In seconds, whether you see them or not, you interact with dozens of different services that share complex interactions and business relationships. Many present an opportunity to create or take advantage of market power.
Not only is Kanter laying out in clear terms the business model of surveillance capitalism for the public, but he wants them to consider how antitrust policy should evolve. “The views of consumers, workers, innovators and others present an incredibly valuable perspective to our efforts while realizing the loss of market concentration,” he added. “Here’s our message to the entire American public: Please share your thoughts – we need your input and we care what you think.”
This is a very different approach to the approach to complexity that regulators and politicians took in the wake of the 2008 financial crisis. After that, there were endless chatty conversations about topics like Tier One capital levels, leverage ratios and whether specific deals were hedging or proprietary trading. This is not to say that these are not important issues. But there is very little discussion about whether banking is really meeting the needs of the society and the real people.
I remember a conversation in 2013 with a former Obama administration official who had been a key player during the crisis. He insisted that post-crisis financial regulatory efforts were not being unduly influenced by Wall Street lobbyists. When I pointed to academic research showing that 93 percent of regulatory consultations on the most controversial parts of the Dodd-Frank Act were with the banks themselves, their cynical response was: “Who else should we have taken them with?”
But the current Justice Department, and the Biden White House in general, is trying hard to avoid this kind of cognitive capture. The New Brandeis School of Legal Theory – which includes Cantor, Federal Trade Commission Chair Leena Khan, and former White House Antitrust Adviser Tim Wu – is built on the idea that power exists in political economy and is not modeled algorithmically. May go. To him, “antitrust law is something that belongs to the public, not judges or a specific legal fraternity”, says Matt Stoller, research director at the American Economic Liberties Project and author of GoliathHistory of monopoly power in the 20th century.
Of course, there are risks to policy by populism. Look at Britain’s departure from the EU after the 2016 referendum, which left the country poorer. But that’s how democracy works. Allowing key decisions on key issues such as corporate power and the rules of surveillance capitalism to be made by technocrats behind closed doors also carries dangers. The Justice Department is quite right that the general public should be able to hear reason.
