Antitrust Attorney Dismantles Senator Klobuchar’s AICOA During Her Hearing to Revive It

Senator Klobuchar expected Tuesday’s hearing to serve as a launching pad for her relentless plans to revive her precious pet project, the American Innovation and Online Choice Act (AICOA). However, Senator Klobuchar likely did not expect a standout, well-cited testimony from an antitrust attorney to overshadow the proceedings with thorough, blistering criticisms of AICOA. 

Photo Credit: Gage Skidmore from Surprise, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons

Assistant Professor of Law at New York University School of Law Daniel Francis humiliated Senator Klobuchar with his specific and exhaustive criticisms of the bill. Francis warned Congress that passing AICOA would effectuate an outright ban on pro-competitive practices that keep consumers safe online. He pointed to examples that critics of AICOA have long-warned would result from a blanket prohibition on self-preferencing, such as the inability to see maps in search results and the lack of pre-installed apps that would appear on user devices.  

Francis also provided Congress a warning that the bill’s broad curtailing of access restrictions would allow bad actors to have access to cameras, microphones and GPS information. These risks likely would not find favor with the broader American public as a recent Ipsos poll found that 84% of Americans say that they are at least somewhat concerned about the safety and privacy of the personal data that they provide on the internet. If AICOA passes, they have every reason to be very concerned.  

To supplement his solid legal analysis of the bill’s various shortcomings, he provided Congress with a  written testimony of over 130 pages. For context, every other speaker testifying not-so-coincidentally blindly and unconditionally vocalized support for AICOA. The four written testimonies provided for the hearing in support of the bill only totaled 29 pages.  Thus, their enthusiasm for the bill did not even come close to matching the passion or intellectual foundation that Francis brought to the committee, with his testimony criticizing the legislation. 

Certainly, legislators that genuinely wanted to reform our antitrust laws would happily dialogue with a good-faith industry scholar who brings to the committee such an extensive list of frightening implications that would result from the bill’s passage. Senator Klobuchar’s behavior during the hearing suggested that she is not one of those legislators. She directed her questions towards AICOA-supportive witnesses and did not even try to probe Francis, despite bringing such high-level analysis of her bill before the committee. 

Congressional leaders ought to read Francis’ comprehensive dissection of AICOA and the equally-problematic Open App Markets Act (OAMA). Doing so would only solidify any concerns that legislators may have with these antitrust power grabs.