DHILLON: Congress Must Address Big Tech at Merrick Garland’s AG Confirmation Hearing

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Harmeet K. Dhillon Republican National Lawyers Association
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In advance of a scheduled March 1 vote, the Senate Judiciary Committee will hold a two-day confirmation hearing for President Joe Biden’s Attorney General nominee, Merrick Garland, on Feb. 22 and 23.

No one in the federal government will impact the expected track of Big Tech consumer protections more than the future leader of this post, so the committee must use this important time to ask Judge Garland pointed and thoughtful questions on this issue of great public importance.

Thanks to lawsuits the Trump administration filed against Google and Facebook for anti-competitive behavior in its final months, these tech giants already face some pressure from the Department of Justice. That said, some of President Biden’s recent appointments — including a former Facebook senior executive as his White House director of legislative affairs — raise the specter that he may not want his administration to police these institutions with the same level of force and fervor.

Yes, it’s true that, even if he wanted to alter the direction of these behemoths’ fate, President Biden could only change so much on his own. Regardless of what the president does, state attorneys general will still pursue their charges against the Big Tech giants, the Supreme Court will still rule on Google’s alleged habit of monopolization through intellectual property theft in the ongoing Google v. Oracle case, and — most importantly — the DOJ will continue to follow existing departmental precedent by leading the effort to pursue anti-trust charges against these entities.

That is, unless President Biden’s nominee to lead the Department of Justice has other plans.

That’s why it’s critical for the Senate to probe Judge Garland’s thoughts on his predecessor’s Big Tech crackdown and explore whether he is interested in building off them should he receive confirmation. As of now, Judge Garland’s thoughts on Big Tech are more or less a mystery. Some expect him to be a hawk; others believe they see a dove. The Senate must pull back the curtain on his personal beliefs in this two-day hearing.

At the same time, Judge Garland’s characterization of his views on Big Tech will far from demonstrate the complete picture of what his DOJ’s relationship with these monopolies would look like. If the Senate wants to ensure it has a true champion at the helm of this indispensable position, it will have to go much deeper than quizzing the AG nominee on his general, theoretical thoughts on this issue.

It would be all too easy for Judge Garland to pay lip service to the cause while seeking to nominate Big Tech apologists to key DOJ posts at the same time — ones that would be more than willing to take the publicity hit by doing these behemoths’ bidding for him. Rightly or wrongly, that’s what some political onlookers already fear Judge Garland is doing.

Reports indicate that he is pushing to have a former Facebook lawyer to run the DOJ’s top Antitrust Division — one who served under him during the Clinton administration and later defended the company for the same seemingly anti-competitive, monopolistic behavior that the Federal Trade Commission is targeting.

Maybe these reports are wrong. Maybe they’re accurate but Garland knows something about his former colleague that the general public doesn’t. In any event, it’s imperative that the Senate find out. It needs to ask Judge Garland if he would encourage the administration to nominate individuals who take the Big Tech threat seriously and if he would order his staff to continue the progress the Department has made in holding Big Tech accountable over the last three months.

From Facebook and Twitter censoring the New York Post exposé of Hunter Biden’s business dealings with China, to Amazon, Apple and Google shutting down Parler, to Facebook and Twitter outright banning the then-sitting president of the United States, censorship in the digital square is also a sizable problem. Does Judge Garland draw a distinction between censorship by government and corporations, or will he stand up for free-speech and free expression online? Given that Biden’s Associate AG nominee, Vanita Gupta, has encouraged Facebook censorship, it’s certainly a fair question to ask Judge Garland.

Finally, and perhaps most critically, the Senate should ask Judge Garland what he believes the DOJ’s relationship is with the executive branch. Does he consider it independent of the White House, or does he believe that the president has a right to shape the department’s overarching strategy and decision-making processes?  

Assuming that Biden and his advisers are poised to take a laxer approach to Big Tech, finding the answer to this question will become crucial to ensuring these monopolies can remain in check under his watch. The last thing the tech accountability movement needs in this pivotal moment is another Eric Holder-profiled leader further politicizing this important position and ceding more of its power to the executive branch.

The Senate Judiciary Committee’s Feb. 22 and 23 questioning of Judge Garland will set the stage for how the rest of the body approaches his March 1 confirmation vote, as confirmation hearings always tend to do. With both parties expressing desire to get Big Tech under control, there should be no excuse for an opponent of the cause squeaking through to confirmation. However, if Judiciary doesn’t take its duty of vetting and questioning Judge Garland seriously, it can happen easier than some may think and perhaps without anyone even knowing it.

Here’s hoping the committee handles this important responsibility with the care and concern it needs and deserves.

Harmeet K. Dhillon is a civil rights lawyer and the CEO of the Center for American Liberty