US and 48 states and districts sue Facebook in major antitrust actions

[The Larch]

It's a shakedown.  Instagram and Whatsapp were not competitors to Facebook, unless you define social media so broadly it loses any meaning.  Is email social media?  Texting, voice calls, snail mail?

Instagram was exactly like FB with a limit of only having picture posts.

And WhatsApp is just like Facebook Messenger.

[The Brain]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

[garbon]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

No, I'd suggest reading articles about it.

[Sheilbh]

It's a shakedown.  Instagram and Whatsapp were not competitors to Facebook, unless you define social media so broadly it loses any meaning.  Is email social media?  Texting, voice calls, snail mail?

I agree with the other comments - Instagram and WhatsApp are clearly social media and I think in both cases Facebook had an analagous service (that was doing less well).

But part of it is surely what's the angle you look at competitors from? Because from a consumer perspective they may offer different services, from the other end (the bit that makes money) where they're targeting advertising they are very similar. In fact there's no difference in output for online advertising is, I think, all managed through Facebook who sort of merge the various data streams they've got about people through the different social media channels they operate.

[The Brain]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

No, I'd suggest reading articles about it.

I'm not that interested.

[alfred russel]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

Intent is a requirement for a lot of crimes. If the powers that be concluded it was okay that you did something with one understanding of your intent, and then it comes to light that your intent was quite different so they decide to prosecute, that doesn't make the action a thoughtcrime.

[The Minsky Moment]

The real moral of the story for the millionth time is to be a lot more careful what you say in email.

I checked my email outbox and have 23,773 emails I've sent dating back to mid 2015. The number should probably be a lot higher but I get distracted with stuff like languish. The reality is that there is such a large volume of email activity going through large companies that you can use emails to prove almost anything you want.

No that is not true.  There are emails, then there are bad emails, and then there are really bad emails.  25K in category 1 doesn't make a case but even one in category 3 can cost billions or get someone convicted

[The Minsky Moment]

It's important to keep in mind that a plaintiff, including (especially?) a government plaintiff, doesn't need to have a slam dunk winner of a case at trial to get a successful outcome.  Most rational defendants don't want to go to trial.  Trials are very expensive and unpredictable especially where civil juries are involved. If a case is factually and legally strong enough to overcome motions for early disposition, there is usually a decent opportunity to get a negotiated settlement.

[The Brain]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

Intent is a requirement for a lot of crimes. If the powers that be concluded it was okay that you did something with one understanding of your intent, and then it comes to light that your intent was quite different so they decide to prosecute, that doesn't make the action a thoughtcrime.

I think it's beyond doubt that Facebook intended to buy Instagram and WhatsApp. So intent has been established. Now was buying those something bad that should be punished? Yes if FB management thought they were buying up competition, no otherwise. I think sound law punishes actions, not thoughts behind actions. NB this is something I've seen in Swedish law and it has always struck me as unsound.

[The Minsky Moment]

For a short US law analysis from an enforcement perspective see: https://www.ftc.gov/system/files/documents/public_statements/1522327/hoffman_-_gcr_live_san_francisco_2019_speech_5-22-19.pdf  - particularly starting around page 5.

Some quotes

Much has been said about the possibility that large tech firms are squelching competition by
systematically acquiring potential competitors. And commentators have at times asserted that
the FTC is oblivious to this kind of anticompetitive acquisition. But let me note a couple of
caveats. First, I am not aware of good economic evidence that there is a unique and widespread
"nascent" or "start-up" acquisition issue in the tech industry

The second initial caveat is—as I've repeatedly said—there is nothing wrong, from an
antitrust perspective, with the theory that the acquisition by an incumbent firm of a nascent rival
could be anticompetitive and violate the antitrust laws. There is no safe harbor for eliminating
future competitors. Had Microsoft bought Netscape rather than trying to put it out of business,
Microsoft would likely have—and should have—faced similar antitrust scrutiny and a similar
result.

Section 2 imposes a somewhat relaxed test for the causal relationship between the exclusionary conduct
and the acquisition or maintenance of monopoly power. Some kind of relationship between the
challenged conduct and the acquisition or maintenance of monopoly power is clearly needed.
But, on the other hand, it's also clear that a plaintiff does not need to show that, on the balance of
probabilities, in the hypothetical world that would have existed without the challenged conduct,
the defendant would not have acquired or maintained the monopoly power that it in fact now
enjoys. . .
There are two really important things to note about this test. First of all, it doesn't turn on
the actual effects in the specific case at issue. It's a matter of general tendency: the kind of
effects that can broadly be expected from conduct of this kind across the great run of cases.
Second, even through this lens of generalization, a plaintiff need not show but-for causation of
the monopoly. What matters is that conduct is reasonably capable (in general) of making a
significant contribution to monopoly: that is, that it would tend to make the acquisition or
maintenance of monopoly power more likely, or more durable, or more substantial, by some
meaningful amount. That is enough.

"Section 2" is a reference to the part of the Sherman Antitrust Act that addressed monopolization.

[grumbler]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

Intent is a requirement for a lot of crimes. If the powers that be concluded it was okay that you did something with one understanding of your intent, and then it comes to light that your intent was quite different so they decide to prosecute, that doesn't make the action a thoughtcrime.

I think it's beyond doubt that Facebook intended to buy Instagram and WhatsApp. So intent has been established. Now was buying those something bad that should be punished? Yes if FB management thought they were buying up competition, no otherwise. I think sound law punishes actions, not thoughts behind actions. NB this is something I've seen in Swedish law and it has always struck me as unsound.

If the law punishes actions regardless of motive (i.e. " thoughts behind actions") you end up with a lot of bad results, like treating accidentally lethal self-defense the same as the worst murder.  The Chinese tried the kinds of Legalism you propose, and it didn't work well.

[The Brain]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

Intent is a requirement for a lot of crimes. If the powers that be concluded it was okay that you did something with one understanding of your intent, and then it comes to light that your intent was quite different so they decide to prosecute, that doesn't make the action a thoughtcrime.

I think it's beyond doubt that Facebook intended to buy Instagram and WhatsApp. So intent has been established. Now was buying those something bad that should be punished? Yes if FB management thought they were buying up competition, no otherwise. I think sound law punishes actions, not thoughts behind actions. NB this is something I've seen in Swedish law and it has always struck me as unsound.

If the law punishes actions regardless of motive (i.e. " thoughts behind actions") you end up with a lot of bad results, like treating accidentally lethal self-defense the same as the worst murder. 

No, and I don't see how you could reach that conclusion.

[grumbler]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

Intent is a requirement for a lot of crimes. If the powers that be concluded it was okay that you did something with one understanding of your intent, and then it comes to light that your intent was quite different so they decide to prosecute, that doesn't make the action a thoughtcrime.

I think it's beyond doubt that Facebook intended to buy Instagram and WhatsApp. So intent has been established. Now was buying those something bad that should be punished? Yes if FB management thought they were buying up competition, no otherwise. I think sound law punishes actions, not thoughts behind actions. NB this is something I've seen in Swedish law and it has always struck me as unsound.

If the law punishes actions regardless of motive (i.e. " thoughts behind actions") you end up with a lot of bad results, like treating accidentally lethal self-defense the same as the worst murder. 

No, and I don't see how you could reach that conclusion.

The difference between self-defense and murder is motive.  Motive  = "thoughts behind actions"

[Barrister]

The difference between self-defense and murder is motive.  Motive  = "thoughts behind actions"

Sorry I must disagree.

The difference between self-defence and murder is intent.  Intent is the "what" in what you are trying to do.  In order to be murder you have to be trying to kill someone.

Motive is the "why".  Are you trying to kill someone because you don't like them?  Because they owe yo money?  They slept with your partner?  That's what motive is.

It's worth noting that as a prosecutor I never have to prove motive, but I always have to prove intent.

[The Brain]

Do I understand the complaints correctly that buying Instagram and WhatsApp was fine (the FTC didn't have a problem with it), but writing some emails made it bad? Seems a bit like thoughtcrime.

Intent is a requirement for a lot of crimes. If the powers that be concluded it was okay that you did something with one understanding of your intent, and then it comes to light that your intent was quite different so they decide to prosecute, that doesn't make the action a thoughtcrime.

I think it's beyond doubt that Facebook intended to buy Instagram and WhatsApp. So intent has been established. Now was buying those something bad that should be punished? Yes if FB management thought they were buying up competition, no otherwise. I think sound law punishes actions, not thoughts behind actions. NB this is something I've seen in Swedish law and it has always struck me as unsound.

If the law punishes actions regardless of motive (i.e. " thoughts behind actions") you end up with a lot of bad results, like treating accidentally lethal self-defense the same as the worst murder. 

No, and I don't see how you could reach that conclusion.

The difference between self-defense and murder is motive.  Motive  = "thoughts behind actions"

Sorry, I simply don't see it. I guess we'll have to agree to disagree.