The last time the courts seriously weighed the wisdom of breaking up a giant technology company was a quarter-century ago, after Microsoft was found to have illegally stifled competition in personal computer software.
A Federal District Court judge said yes to forcing Microsoft to split in two, separating its monopoly Windows operating system from its Office productivity products and other software. But an appeals court threw out the order, calling the breakup option “a remedy that is imposed only with great caution, in part because its long-term efficacy is rarely certain.”
In a pair of landmark proceedings this month in two Washington courtrooms, the issue of possibly breaking up a big tech company will be on the judicial table again.
In an antitrust trial that began on Monday, the Federal Trade Commission argued that Meta maintained an illegal monopoly in social media through its acquisitions of Instagram and WhatsApp. The agency seeks to force Meta to divest both. Next week at a separate proceeding, a federal judge will hear arguments from the Justice Department about why the court should break up Google in order to remedy the company’s monopoly in internet search.
“Divestiture can be an entirely acceptable remedy, depending on the severity of the harm,” said William Kovacic, a law professor at George Washington University and a former chairman of the F.T.C. “But it can be risky surgery.”
For generations, the courts have faced the quandary of what action to take in major antitrust cases once a dominant company has been found to have engaged in anticompetitive behavior. In a 1947 Supreme Court ruling, Justice Robert H. Jackson memorably wrote that if a court’s solution did not open the market to competition, the government would have “won a lawsuit and lost a cause.”