The U.S. Justice Department filed an friend-of-the-court briefing earlier this week, asking the 2nd U.S. Circuit Court of Appeals to reinstate DirecTV’s antitrust suit against Nexstar Media Group and two smaller station groups.

Also read: DirecTV To Appeal Judge’s Decision To Toss Its Nexstar Antitrust Case

DirecTV accused Nexstar of conspiring to fix broadcast retransmission license fees through management services agreements with smaller station groups Mission Broadcasting and White Knight. 

Back on March 20, U.S. District Court Judge Kevin Castel of the Southern District of New York dismissed DirecTV's case. He ruled that any financial injury DirecTV suffered as a result wasn't caused by any price-fixing conducted by Nexstar, Mission or White Knight. Rather, damages resulted from DirecTV’s decision not to do business, starting in 2022, with Mission and White Knight stations … with the subsequent loss of programming causing DirecTV customers to unsubscribe. 

The DOJ believes Castel applied the wrong legal framework here, and it has asked the court overseeing DirecTV's appeal to “correct the district court’s erroneous holding in its antitrust-standing analysis that the sole type of injury for which a private consumer plaintiff can recover in a price-fixing case is the payment of supracompetitive prices.

“The harms from a price-fixing conspiracy are not so limited,” the DOJ added. “Price fixing corrupts the competitive process, and that anticompetitive harm can result in various antitrust injuries, such as reduced output and decreased quality, in addition to increased prices.”

DirecTV has accused of turning the smaller Mission and White Knight into "sidecars," negotiating retransmission consent for their 27 stations in 25 designated marketing areas in which Nexstar already manages duopolies. 

The Department of Justice says its June settlement with Meta (formerly Facebook) over discriminatory targeting of online housing ads has met a "key" milestone with Meta's completion of a new system to "address algorithmic discrimination."

The agreement marks "the first time that Meta is subject to court oversight for its advertisement targeting and delivery system," DOJ said, and ensures that it will be subject to that court oversight through June 2026.

DOJ said the settlement had held Meta accountable for "unlawful algorithmic bias and discriminatory ad delivery on its platforms."

Also: Meta May Not Be Betta, But It Still Matters to Streaming Video’s Future

The Biden Administration had alleged that Meta algorithms targeting housing ads relied on protected characteristics including a recipient's age, sex and race to gauge relevance.

Meta's new system, dubbed the Variance Reduction System (VRS) reduces the difference between an eligible audience's racial/ethnic/gender makeup and an actual audience. That system will get a third-party review to verify whether VRS is actually meeting specific compliance metrics. ■

Big Tech is a threat to liberty and a big mole that needs whacking, a la the arcade game where the object is to bash as many of them on the head as is possible. That was the message of the Justice Department’s antitrust chief in a fiery speech to the Fordham Competition Law Institute’s 49th Annual Conference on International Antitrust Law and Policy Friday (Sept. 16) in New York.

Assistant Attorney General Jonathan Kanter, who heads the Justice Department's Enforcement Division, told his audience that the digital economy has produced massive monopolists that have the means to exploit their power “more threatening to individual freedom than ever before.”

The goal of regulators, he said, must be to “unplug the monopolization machine in digital platform industries.”

Those regulators are, principally, the Justice Department and Federal Trade Commission, both of which vet mergers. The FTC is also charged with preventing unfair and deceptive business practices and violations of privacy policies.

Also: FTC Signals Imposing Rules Targeting Commercial Surveillance

Using the Whack-a-mole analogy, Kanter said that abuse of power by digital actors is a constant threat. “If we answer one practice, another arises,“ he said. ”If we address one behavior in one adjacent market, monopoly power may be used to extend the moat further around it.”

Kanter said such monopoly power has not been seen in 100 years, meaning the Standard Oil trust that was broken up by the government in the early 20th century.

He had some suggestions for whacking the Big Tech moles more effectively.
Those included better understanding how such monopolies operate and “all of the mutually-reinforcing strategies that protect the monopoly.” Borrowing another analogy, he said, “If we spend a year examining a single tree, no matter how effectively, we will never have a sense of the forest.”

Another suggestion was not to underenforce for fear of over-enforcing. “Monopolies do not self-correct,“ Kanter said. “We have all seen that in digital markets, monopolies self-sustain. Platforms that are fundamentally collaborative become critical trading partners for entire industries, and without competition have greater power to discourage rivalry. I therefore believe we can no longer be so cautious to avoid overenforcement that we intentionally underenforce the law. 

“At the Antitrust Division, we have moved past the error-cost error,“ he added. ”We have been too limited by a self-imposed requirement that we use our most powerful microscopes to examine an exclusionary act before intervening to stop it. We need a wider lens and a greater willingness to pursue and remedy all of the harmful behaviors that make up an exclusionary course of conduct."

The DOJ needs to stop mergers that “tend to create a monopoly,” Kanter said, or that will lead to underenforcement that entrenches market power.

Currently, mergers under a certain size do not trigger rigorous antitrust review. Justice and the FTC are both taking a fresh look at whether that policy has allowed Big Tech to buy up to monopoly by purchasing potential competitors before they get large enough to trigger such reviews.

Also: Sponsors Urge Action on Big Tech Competition Bill

Finally, Kanter put in a plug for the American Innovation and Choice Online Act.

The bill was introduced back in October 2021 by Sen. Any Klobuchar (D-Wis.), chair of the Senate Antitrust Subcommittee and a self-described leading antitrust reformer, and Republican Sen. Chuck Grassley (R-Iowa), the ranking member, who joined Klobuchar at the press conference to press for a vote.

The bill would prevent an online platform from: 1) keeping one business from interoperating with a dominant platform of another business; 2) requiring a business to buy a dominant platform’s products or services in order to get preferred placement; 3) “misusing” a business’s data to compete against it; and 4) biasing search in its favor.

The bill’s targets are chiefly Google, Amazon and Apple, all members of the Computer & Communications Industry Association, which is funding an ad campaign opposing the bill that has blanketed the D.C. airwaves in recent months.

“[L]egislation will be a critical tool to discourage a wide range of exclusionary practices and give would-be competitors confidence that they are protected from retaliation,” Kanter said of the bill. ■

Attorney General Merrick Garland told news media execs in a meeting Tuesday (Sept. 13) that his department was committed to protecting a free and independent press, including ensuring that journalists are not compelled to reveal their sources or information as part of law enforcement investigations.

In July 2021, Garland announced a new policy to restrict compulsory processes to get information collected in the "scope of newsgathering activities." Those protections are necessary in the absence of a federal shield law and include a prohibition on subpoenas, warrants, certain court orders, and "civil investigative demands."

Also: Journalists Press for Shield Law

Garland told the news executives, which included execs from CBS, NBC, CNN and NPR, that the act of codifying that July 2021 policy shift, which was announced in a memo, would be ready and posted online in the next three months.

The prohibition does not apply if a journalist is him or herself being investigated for criminal conduct, such as insider trading, or to a journalist who used criminal methods -- breaking and entering, for example, to obtain information. But the prohibition does apply if a journalist has obtained and published government information, including classified information, in the course of their reporting.

There is also the traditional carveout -- typical for state shield laws -- for subpoenas or warrants or other legal processes employed to prevent imminent risk of death or serious harm to people or critical infrastructure.

Justice also supported a federal shield law as part of that July 2021 rethink, but none has yet to make it through the Congress despite multiple attempts over many years. 

News that a Twitter whistleblower is leveling serious allegations against the company related to its protection, or knowing lack thereof, of user's privacy and security, Hill Democrats already unhappy with Big Tech are calling for answers ASAP, including through investigations by the Federal Trade Commission and Justice Department.

There were multiple reports Tuesday (Aug. 23) that former Twitter head of security Peiter Zatko (the former "hacker" formerly known as "Mudge"), who was fired from the company in January, had filed a complaint with the SEC, DOJ and the FTC against the company alleging he was made to mislead the board and investors about security protections .

Zatko claims he was fired as retaliation, but Twitter told NBC News that the firing was for cause--poor performance--and that Zatko was relaying a "false narrative."

That complaint could potentially buttress billionaire Elon Musk's effort to extract himself from a planned purchase of the company, whose business practices, specifically regarding spam and fake accounts, he has cited as the reason.

In the wake of those reports, Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) pressed for investigations into the complaints.

"Twitter has continued to suffer embarrassing security incidents and face ongoing scrutiny for misleading users and regulators,” Markey said in calling for investigations by Justice and the FTC. “This blithe disregard for user data and FTC settlements cannot stand. I strongly urge the federal government to investigate Zatko’s claims and, if necessary, take strong and swift action against Twitter to ensure Twitter user data is properly protected.”

He also said it appeared Twitter had, again, violated the terms of a 2011 consent decree with Justice and DOJ, pointing out that in May it had agreed to pay $150 million to settle allegations it had violated the decree by using its users' e-mail address and phone numbers for marketing purposes after promising not to.

Sen. Blumenthal, chair of the Senate Consumer Protection Subcommittee, echoed Markey's concern, as well as the call for investigations tied to Twitter's consent decree orders.

“If the Commission does not vigorously oversee and enforce its orders, they will not be taken seriously and these dangerous breaches will continue,” Blumenthal said. “I urge the Commission to investigate the allegations and information provided in Mr. Zatko’s whistleblower complaint, and to bring enforcement actions against any breaches of its consent decree or business practices that are unfair or deceptive, including bringing civil penalties and imposing liability on individual Twitter executives where appropriate.”

In 2011, Twitter agreed to a settlement that would impose "substantial financial penalties" if it "further misrepresented 'the extent to which [Twitter] maintains and protects the security, privacy, confidentiality, or integrity of any nonpublic consumer information," the FTC said at the time.

There is bipartisan criticism of Big Tech on the Hill, fueled in part by the revelations of another whistleblower--former Facebook exec Frances Haugen, who created quite a stir last November on Capitol Hill with testimony, including in Blumenthal's subcommittee, in which she revealed internal Facebook research showing the company knew its Instagram platform could be harmful to some teens. ■ 

Citing Elon Musk's ownership of satellite internet platform Starlink, the Open Markets Institute says that the FCC, Justice Department and Federal Trade Commission all have the power to block his purchase of social media giant Twitter.

In a statement following the deal announcement, OMI, a liberal think tank that has big issues with perceived monopolies, sees Musk's Twitter takeover as just that, and says the FCC, for one, can block it based on the Communications Act of 1934 and even the Telegraph Act of 1860, given that the deal would give a single person "direct control over one of the world's most important platforms for public communications and debate."

Also: Warner Warns Musk Against Twitter Backslide

DOJ and the FTC certainly have a role in reviewing the $40 billion-plus deal, but the FCC's role is less clear, particularly since it basically shed itself of broadband access oversight -- beyond service transparency obligations -- when it reclassified internet as an information service.

OMI also says the deal would be a merger between essential platforms -- Starlink and Twitter -- that the government routinely acts to prevent.

Interestingly, the group cites for example the DOJ's effort to block the ATT&T/Time Warner deal, which actually failed after a court refused to block that merger.

OMI suggests that Starlink, which has yet to become a major internet player (though it did get a lot of press for Musk's effort to use the satellites to provide internet access to war-torn Ukraine) is comparable to the largest media operations. 

"[J]ust as we would now expect the U.S. government to block a takeover of Twitter by Google, Facebook, Comcast, or Verizon, the same rules apply to the owners of Starlink," it said in a statement.

Many Democrats are concerned that Musk's pledge of reduced content moderation on the platform -- in the name of free speech -- will lead to an increase in disinformation and misinformation. 

FCC Commissioner Brendan Carr, who has been crticial of what Republicans see as Twitter's censorship of conservative speech, including that of former President Donald Trump, was unconvinced.

“The FCC has no authority to block Elon Musk’s purchase of Twitter, and to suggest otherwise is absurd," said Carr in a statement. "I would welcome the full FCC making it clear that we will not entertain these types of frivolous arguments.”■

Public-interest lawyers used Netflix’s rise in the video distribution business to argue that the Department of Justice and Federal Trade Commission are particularly bad at predicting the future of digital markets.

Both agencies are seeking input on whether they need to readjust merger guidelines to reflect the rise of Big Tech giants they suggest have bought up to monopoly -- such as Facebook and Google -- by gobbling up potential competitors, including startups, before they were big enough to register on the antitrust radar.

The DOJ and the FTC divide up merger reviews.

Also: Democrats Look to Block, Unwind Big Tech Mergers

In its comments to the FTC, the Washington Legal Foundation, representing public-interest lawyers, did not hide its disdain for both agencies in suggesting they should leave antitrust merger guidelines alone.

“The FTC and DOJ think that they can predict the evolution of digital markets,” WLF told the FTC to its regulatory face, as it were. “This is pure hubris that conflicts with reality and misunderstands how digital markets work. History also shows that the FTC and DOJ have no clue how digital markets will change. What once looked like a monopolist who should be barred from merging with any competitor may file for bankruptcy only five years later.”

To make its point, WLF pointed out that the FTC in 2005 sued Blockbuster to block its purchase of Hollywood Entertainment because it would have given the video-store chain too much market power. Enter Netflix’s announcement two years later that it would stream movies so folks no longer had to trek to the video store or worry about all the copies being snatched up before they got there.

Five years later, Blockbuster filed for bankruptcy. “It’s impossible to predict what will happen in the digital market,” WLF said in the filing. “If it were possible to envision Netflix’s emergence, the FTC would not have sought to decrease competition by ensuring Blockbuster’s demise. But that is what happened because the FTC is lousy at predicting future market share.” ￭

A Washington State man has been sentenced to seven years in prison for plotting to threaten and intimidate journalists who were trying to expose anti-semitism.

Kaleb Cole, who lead the neo-Nazi Atomwaffen Division, was convicted by a Washington District Court of threatening communications and conspiring with other neo-Nazis to commit "interference with federally-protected activities because of religion, mailing threatening communications and cyberstalking."

Kristen Clarke, assistant attorney general of DOJ's Civil Rights Division, said that Cole had led a multistate plot to threaten and intimidate journalists who were Jewish or of color by mailing posters or gluing them to the homes of the journalists. The posters featured images of a hooded figure about to throw a molotov cocktail at a house and said “you have been visited by your local Nazis.”

The journalists targeted had told at trial how the intimidation had affected them, including moving out of their house for a while, or buying a security system, buying a gun and learning how to use it, and one even quit the journalism business.

“The defendant sought to intimidate journalists and advocates working to expose anti-Semitism, but that effort failed,” said Timothy Langan, assistant director of the FBI’s Counterterrorism Division. “Cole’s intended victims fought back but not with threats of violence; they fought back in a court of law. The FBI will continue to do our part by aggressively investigating cases involving threats or acts of violence.” ■

The Justice Department was instrumental in taking down a trio of Amazon sellers who were trying to fix the price of DVDs and Blu-ray Discs.

Morris Sutton, Emmanuel Hourizadeh and Raymond Nouvahian have pleaded guilty to conspiring with others to fix (first raise, then maintain) the prices of the videos they sold on their Amazon storefronts, dating back to November 2017 and continuing through October 2019. The Justice Department Antitrust Division’s Chicago office prosecuted the case.

Their crimes carry a maximum sentence of 10 years in prison and a $1 million fine, though that can increase two twice their ill-gotten gains or twice the loss suffered by their victims if either is greater than $1 million.

Sentencing will be up to a U.S. District Court judge.

“Price-fixing schemes chip away at the benefits afforded to us by a fair market system,” Michael J. Driscoll, assistant director in charge of the FBI’s New York Field Office, said. “Artificially inflating prices to avoid giving consumers a choice, for the sole purpose of benefitting those involved in the fraudulent scheme, is a violation of federal law. These guilty pleas should serve as a warning to other like-minded criminals.”

The Senate has voted to confirm Jonathan Kanter as head of the Antitrust Division of the Department of Justice. 

The partly bipartisan vote — 68 to 29 — may have been because the move puts a big Big Tech critic atop the division and going after Big Tech is definitely a bipartisan exercise in Washington these days.

The President previously named Big Tech consolidation critic Lina Khan to head the Federal Trade Commission. Justice and the FTC divvy up merger antitrust reviews.

Kanter is founding partner of the Kanter Law Group, described as a boutique antitrust firm, which works for antitrust law enforcement. He has also served as an attorney at the FTC‘s Bureau of Competition.

Also: Biden Puts Big Tech Critic Atop Antitrust

In his Kanter Law Group bio, he is described as “a leader in the effort to advocate for antitrust enforcement actions against big tech companies by federal and state authorities.”

The Biden administration has targeted Big Tech companies for serious antitrust scrutiny, including look-backs at acquisitions that may have pre-empted future competitors. ■

In a signal that the Justice Department is serious about enforcing its antitrust laws against potential large mergers, DOJ has sued to block a deal for ViacomCBS to sell assets to a direct competitor, but in this case it is the entertainment giant's Simon & Schuster book publishing subsidiary.

Penguin Random House had struck a deal to buy Simon & Schuster for $2.175 billion, but DOJ said that would create a "behemoth" that would harm authors and consumers.

Penguin Random House is the world's largest publisher.

Also: AG Garland Pledges Strong Antitrust Enforcement

DOJ said that such a horizontal merger--between direct competitors--would decrease the competition for content, resulting in lower prices paid to content producers and less choice for consumers, in this case manuscripts but the same argument DOJ has made against mergers of other content distributors.

“In stopping Penguin Random House from extending its control of the U.S. publishing market, this lawsuit will prevent further consolidation in an industry that has a history of collusion,” said acting Assistant Attorney General Richard A. Powers. “I want to thank the Attorney General and senior leadership of the department for their support of antitrust enforcement.”

As expected, the Federal Trade Commission has voted to "withdraw" its "flawed" vertical merger guidelines, which were issued jointly by the FTC and Justice under the Trump Administration.

Vertical mergers are ones that combine different parts of the same supply chain (AT&T with its video services and Time Warner with its content production, for example), which DOJ under Trump tried unsuccessfully to block.

The vote is a signal that the commission majority will be unlikely to give as much weight to purported pro-competitive effects of vertical mergers, effects merging companies have been highlighting in pitching their deals.

That decision came at its public meeting Wednesday (Sept. 15). The vote was 3-2 along party lines.

Tech companies from Amazon to Z-Wave had been telling the FTC not to rescind the guidelines, which were adopted in 2020.

Some Democrats had argued that the merger guidelines update under Trump, which was billed as a way to better identify and challenge competitively harmful mergers, still kept a thumb on the scale for those mergers by suggesting they were generally pro-competitive.

FTC Chair Lina Khan said the guidelines had taken some positive steps toward updating policy that had become outdated and inconsistent with agency practice, but said the update also suffered from serious deficiencies, including "improperly suggesting that efficiencies or pro-competitive effects may rescue an otherwise unlawful transaction."

She also said the guidelines' "misguided" discussion of the "purported" pro-competitive effects of vertical mergers would be difficult to correct if relied on by courts. She said the FTC looked forward to working with the FTC on updating the transaction review framework.

In a statement, the Justice Department said it also had issues with the guidelines and also would work with the FTC to update them. The FTC and Justice divvy up antitrust reviews of mergers over a certain threshhold.

Commissioner Christine Wilson had procedural and substantive concerns with the withdrawal. She said the guidelines were supported by sound economics and reflected agency experience and substantial public input. She said the guidelines don't give vertical mergers a free pass, but recognize the actual pro-competitive effects that reviews should take into account.

Commissioner Noah Joshua Phillips said that without sufficient public input or analysis, the agency was removing guidance, while failing to replace it.

Also Read: FTC Accuses Facebook of Surveillance-Based Ads

Also at the meeting, FTC staffers presented highlights from a report on Big Tech purchases that flew under that antitrust threshhold.

The report found that, in aggregate, the five Big Tech companies studied--Google, Apple, Amazon, Microsoft and Facebook--purchased dozens of companies per year between 2010 and 2019 that did not trigger Hart Scott Rodino antitrust reviews. It also found that the large majority of the deals (75%) included noncompete clauses for the founders and key employees of the acquired companies.

The FTC wants to know whether those were efforts to purchase competitors, essentially buying up to monopoly.

The FTC did not break out individual companies to protect sensitive competitive information.

FTC Chair Lina Khan said the report highlighted the systemic nature of Big Tech
"buying their way out of competing." She said the FTC needs to look at whether its reporting requirements are "unjustifiably" allowing such deals to fly under the radar.

She said the FTC has begun to try and close those loopholes. She also pointed to the role of noncompetes in how firms designed their transactions. She said the FTC will look into the use, "and misuse" of those clauses generally as well as in Big Tech deals.

She also said the report could be useful to Congress in efforts to update merger related legislation.

Commissioner Rohit Chopra said the Hart Scott Rodino Act should be amended so that companies need to report more of their M&A activity to antitrust agencies, including those that fall below "today's" threshhold.

He said the FTC should also crack down on "avoidance devices," which he called tricks to keep a deal below the HSR review threshhold, like disguising the real price of a deal using future stock grants and options in an employment agreement.

Commissioner Noah Joshua Phillips called the report a good example of the FTC's use of its special powers. He said that he hoped the document contributed to the broader debate about mergers, but said it was important to be frank about what the data show and don't show.

He said the study was aggregate statistics of only five Big Tech companies, so it is limited in scope. He also said it does not say whether these are representative of tech or the general market. He said that his view is the FTC should be thinking about "smart targeting" its antitrust enforcement.

"Last year’s vertical merger guidelines missed the mark," said Joshua Stager, deputy director of broadband and competition policy at New America’s Open Technology Institute," on the FTC's vote to rescind the guidelines. "They glossed over critical issues, ignored key harms in digital markets, and denied public participation. Perhaps most importantly, they were approved by the slimmest majority possible. To work effectively, the guidelines should reflect consensus. We look forward to working with the FTC to find that consensus and to make our antitrust laws work better under stronger guidelines."

Technology companies from Amazon to Z-Wave are telling the Federal Trade Commission not to rescind its vertical merger guidelines and enforcement advisory that were adopted in 2020 under President Donald Trump.

The proposal to scrap both is scheduled for a vote at the FTC's Sept. 15 public meeting, and the Democratic majority is expected to approve their exit.

In a Sept. 13 letter to the FTC, the Consumer Technology Association (CTA) said those 2020 guidelines, jointly adopted by the FTC and DOJ, which divvy up merger antitrust reviews, were produced after extensive public input.

Some Democrats had argued that the merger-guideline update under Trump, which was billed as a way to better identify and challenge competitively harmful mergers, still kept a thumb on the scale for those mergers by suggesting they were generally pro-competitive.

Vertical mergers are tie-ups that combine different parts of the same supply chain, such as AT&T with its video services and Time Warner with its content production — a deal that the Trump-era Justice Department tried unsuccessfully to block.

The CTA told the FTC it opposed any move to rescind the guidance, particularly without robust notice and public input on what it said would be a sudden shift away from traditional merger reviews, a shift that would "stifle companies’ ability to plan, invest, and innovate."

"We urge the commission to reject the vote to withdraw the Guidelines and Commentary, or in the alternative, to postpone the vote and provide notice and a reasonable comment period for public consideration and input," CTA said.

The FTC under new chair Lina Khan has signaled it will be looking hard at big tech companies and whether they got that big via buying up to monopoly. That is the FTC's allegation against Facebook in a revised complaint.

CenturyLink (since renamed Lumen) has agreed to pay the Justice Department $275,000 to settle DOJ's complaint stemming from the company's violation of the terms of its acquisition of Level 3.

It is the second such violation, DOJ said, which will file a civil contempt claim in D.C. federal court and at the same time ask the court to accept the settlement, which resolves the claim.

Also Read: CenturyLink, DOJ Settle Level 3 Condition

“CenturyLink is a repeat offender,” said acting assistant Attorney General Richard Powers of the Antitrust Division. “The request for a finding of civil contempt is appropriate because the company violated its amended obligations immediately after the court imposed them. When companies fail to comply with court-ordered obligations, the Antitrust Division will take action to enforce them.”

CenturyLink had violated the 2018 final judgment that paved the way for the Level 3 purchase, then violated the August 2020 settlement of that violation, which is what prompted this week's settlement of the civil contempt claim.

The Justice Department has signed off on the first $32.3 million tranche of over $200 million in forfeited funds to FIFA and others from widespread corruption in the securing of TV and other media and marketing rights for international soccer.

Justice said well over that initial amount has been seized as part of the government's prosecution of that corruption. The money is being remitted to FIFA, the world soccer organizing body; CONCACAF, which oversees soccer in North and Central America; and CONMEBOL, which oversees South America, as well as various other soccer federations.

According to Justice, sports marketing companies paid bribes and kickbacks to soccer officials in exchange for the rights to various tournaments and events.

The $32.3 million is the beginning of the process of getting funds to the victims of the FIFA bribery scandal and out of the hands of the corrupt officials that took it.

“Not one official in this investigation seemed to care about the damage being done to a sport that millions around the world revere," said Michael J. Driscoll, assistant director-in-charge of the FBI’s New York Field Office. "The only silver lining is the money will now help underprivileged people who need it, not the wealthy executives who just wanted it to get richer. Our work isn’t finished, and our promise to those who love the game – we won’t give up until everyone sees justice for what they’ve done.”

This week's initial tranche of money comes from the forfeited assets and stems from a May 2015 indictment of 14 FIFA officials and sports marketing executives with racketeering, wire fraud and money laundering, plus a follow-on indictment of even more officials.

Many of the defendants were ordered to forfeit their ill-gotten gains and Justice is authorized to distribute forfeited assets through a remission process to victims of the crimes, including to the soccer organizations defrauded by corrupt executives.

The Justice Department said Monday (July 19) that it has formally changed its policy to restrict the use of “compulsory processes” — such as subpoenas — to get information or records from members of the press on activities in the course of doing their jobs and in the “scope” of newsgathering.

The policy, effective immediately, was announced in a memo to department staff leadership by Attorney General Merrick Garland.

Garland has asked a deputy attorney general to look into codifying the policy into department regulations to ensure the “durability” of the change, and added that he supports legislation that would protect the news media.

The Justice Department had already announced that it would not be issuing subpoenas for reporters' records in leak investigations.

The changes in policy followed a report in The New York Times that not only was the Biden White House continuing the pursuit of records from Times reporters, a holdover from a Trump-era investigation, but that it had issued a gag order preventing the publisher’s executives from talking about the matter, even to its own staff.

CNN also reported that the Trump administration had obtained phone records and email messages from the network’s correspondents as part of leak investigations.

The Department of Justice said Saturday (June 5) that, going forward, it will not be issuing subpoenas for reporters' records in leak investigations.

That came after the New York Times reported that not only was the Biden White House continuing the pursuit of such records from its reporters, a hold-over from a Trump era investigation, but that it had issued a gag order preventing the paper's executives from talking about it, even to its own staff.

"While the Trump administration never informed The Times about the effort," said Times attorney David McCraw, according to the paper. "[T]he Biden administration continued waging the fight this year, telling a handful of top Times executives about it but imposing a gag order to shield it from public view." McCaw called that gag order unprecedented.

Also Read: Trump Suggests NBC Licenses Should Be Challenged

"As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night," said Biden Press Secretary Jen Psaki in a statement. "While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward."

CNN reported last month that the Trump Administration had obtained phone records and e-mails of CNN correspondents as part of leak investigations.

Also Read: Trump Pumps Up Attacks with CNN Claims

Trump spent much of his administration attacking the Times, CNN, NBC and others who wrote negative stories about him as his enemies — and enemies of the people — in league with Democrats to un-elect him. In the case of NBC, he suggested the FCC should investigate whether it should continue to hold broadcast licenses.

The Justice Department has joined the Federal Trade Commission and FCC in warning consumers about bogus COVID-19 vaccine surveys that collect credit card info.

Also Read: FCC Says Don't Fall for Fake COVID-19 Surveys

The FCC tweeted its warning earlier in the week, tied to an FTC warning. On Wednesday, Justice weighed in. Scammers send the surveys and said the recipient can get a free gift for filling it out, with only shipping and handling to pay. Those who give up that info not only don't get a free gift but open themselves up to credit card fraud, Justice points out.

DOJ says that anyone getting the phishing e-mails of texts should not only not click on any imbedded links or reply to the survey but should report it to the National Center for Disaster Fraud (NCDF), either by calling 866-720-5721 or by filing on an online complaint form at www.justice.gov/disaster-fraud.

Also Read: DOJ Disrupts COVID-19 Web Scams

They can also report it to the National Intellectual Property Rights Coordination Center (IPR Center) at http://www.IPRCenter.gov.

The Biden Justice Department has dropped the Trump Justice Department's challenge to California's net neutrality law.

The court issued a one line statement: "Plaintiff the United States of America, by and through its counsel, hereby gives notice of its voluntary dismissal of this case."

Congressional Democrats had pressed the new administration to drop their support of the legal challenge.

Also Read: OTI Says Court Should Deny Blocking California Law

DOJ under Trump had argued that the FCC elimination of rules against blocking, throttling and paid prioritization preempted California's attempt to reinstate them in that state, an argument ISPs made in joining DOJ in that legal challenge before the U.S. District Court for the Eastern District of California.

Attorney Andrew Schwartzman, who backs the California law, said DOJ's dropping of the case was no surprise--given the change in administration and view of net neutrality rules, which Democrats favor--but that it was important because "the views of the United States weigh heavily on preemption questions of the kind raised here."

A hearing on a motion for preliminary injunction in the case, now absent DOJ representatives, is scheduled for Feb. 23. 

Also Read: Judge Moves California Net Neutrality Law Hearing

"Those of us who support the California law believe that challenges to it lack a valid basis," said Schwartzman. "In light of the fact that the FCC disclaimed any jurisdiction over broadband internet service, the FCC's claim of a policy of "non-regulation" leaves the states free to regulate.

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

Justice then filed suit in support of the FCC, as did ISPs.

Acting FCC chairwoman Jessica Rosenworcel, who had voted against the FCC order eliminating net neutrality rules, praised the move.

“I am pleased that the Department of Justice has withdrawn this lawsuit," she said in a statement. "When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws. By taking this step, Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.”

“We applaud the DOJ for dropping this harmful legal challenge," said Joshua Stager, senior counsel at New America’s Open Technology Institute. "The Trump administration initiated the lawsuit as a frontal attack on both net neutrality and California’s right to protect consumers. The Biden administration must restore net neutrality, and dropping this case is a good start.

“In 2018, Sacramento legislators passed this law to ensure that Californians get the internet service they paid for without unreasonable interference from their internet provider. That law is needed now more than ever as millions of Californians rely on internet service to get through simultaneous public health, economic, and climate crises. The Department of Justice never should have stood in the way of this law.”

The Federal Trade Commission and Justice Department have jointly announced they are suspending early terminations of merger reviews, citing an "unprecedented" volume of proposed mergers for the start if the fiscal year.

also Read: DOJ's Delrahim Proposes Publi-Private Big Tech Regulatory Agency

Early terminations are the notifications that a merger submitted for Hart-Scott-Rodino (HSR) antitrust review will not be blocked or conditioned, and so has received an early end to that antitrust review. 

Justice and the FTC divvy up the reviews, with Justice handling communications mergers but FTC announcing the terminations for deals submitted for the pre-merger review. All mergers over a certain dollar threshold (currently $90 million) must submit to the reviews, with the FTC announcing the early terminations. 

But during the transition to the new administration while it is reviewing "process and procedures" for granting the early terminations, and given the volume of the HSR filings, the FTC said, neither agency will grant early termination.

The FTC said it expected the suspension of the process should be "brief."

“We, as an agency and a country, are in unprecedented times, and our obligation is to be responsive to these circumstances, in this case by temporarily suspending early termination,” said acting FTC chair Rebecca Kelly Slaughter 

Sen. Amy Klobuchar (D-Minn.), who is introducing legislation to reform the merger review process, and who has had issues with Big Tech purchases of smaller start-ups that have flown under the antitrust radar, including by not rising to the pre-merger value, suggested the move buttressed her case for legislation.

“The FTC and Justice Department’s announcement makes two things clear," she said in an e-mailed statement. "First, as enforcers are having trouble even keeping up with incoming merger filings, the agencies need more resources and staff to effectively protect consumers and competition." Her bill would boost funding.

"Second, despite the pandemic, market consolidation is alive and well," she said. "We know that we can’t take on this problem with duct tape and band aids"--a point she made in announcing her bill this week. "[W]e must ensure that enforcers at the FTC and Justice Department have the resources they need to tackle our competition problems. I [have] announced a bill that would do just that.”

The Justice Department is telling the Pakistani government that it wants to take custody and try Ahmad Omar Saeed Sheikh for the abduction and murder of journalist Daniel Pearl.

Also Read: CPJ Says Journalists Must Band Together for Safety

That word form acting attorney general Monty Wilkinson came after the Pakistani Supreme Court affirmed the acquittal of all those convicted by a Pakistani trial court of the crime, including the British born Sheikh, who admitted to the killing at his trial in 2002.

Pearl was the Wall Street Journal's South Asia Bureau chief (and former D.C.-based telecommunications reporter for the paper) who was kidnapped and beheaded in 2002 while covering Islamic extremists in Pakistan.

Also Read: President Obama Signs Daniel Pearl Freedom of the Press Act

“Ahmad Omar Saeed Sheikh has long been indicted in the United States and must be held accountable for his crimes," Wilkinson said in a statement. "The release of those involved would be an affront to Daniel Pearl’s family, to other terrorism victims around the world, and to the cause of justice. While we remain grateful for the Pakistani government’s opposition to these acquittals on appeal, in light of the Supreme Court’s decision, the Department of Justice reiterates that the United States stands ready to take custody of Sheikh to stand trial here on the pending charges against him. He must not be permitted to evade justice for his charged role in Daniel Pearl’s abduction and murder.”

At press time Sheikh had reportedly not yet been released 

"[W]e call on the Pakistani government to expeditiously review its legal options, including allowing the United States to prosecute Sheikh for the brutal murder of an American citizen and journalist," said White House Press Secretary Jen Psaki when asked about the acquittal. "[W]e're committed to securing justice for Daniel Pearl's family and holding terrorists anywhere accountable for their heinous crimes."

Department of Justice Antitrust Chief Makan Delrahim said that if the government does not find a way to harness the massive market power of those platforms to democratic policies, the country risks "devastating outcomes for our civil democratic society."

He suggested one solution could be a new "public-private" agency, the Digital Markets Rulemaking Board, with the power to regulate edge providers like social media sites.

Also Read: Delrahim Seeks Examples of Online Platform Anticompetitive Conduct

"The single greatest issues facing my successors, the new Congress, and the public relate to concerns of market integrity and market power in the increasingly concentrated digital marketplace," he said. "These issues include data portability, non-discrimination and interoperability of digital products and services."

Delrahim was delivering some sobering final thoughts about Big Tech in a speech to the Duke’s Center on Science & Technology Policy on his last day as, he pointed out, the Senate-confirmed assistant attorney general in the Antitrust Division.

He said that policy solutions in the current debate over the power of online platforms and digital markets have ranged from "command and control" regulations from a new agency charged with overseeing digital technology to breaking up companies with a certain size (like Google and Facebook and Twitter), to laissez-faire self regulation.

Delrahim instead suggested a hybrid public-private rulemaking body with "limited" oversight to increase both competition among and trust in online platforms.

He said that agency could come up with rules to prevent discrimination by larger platforms against products or services either because they compete with them or because they "espouse viewpoints inconsistent with those of the platform operators."

Also Read: DOJ OK With Online Ad Production Services Market

That new Digital Markets Rulemaking Board (DMRB) would be "a private/public self-regulatory board consisting of industry and public members with technical and policy expertise with the mission to develop and propose market-based, non-discriminatory rules to promote market integrity."

He said a public-private hybrid would help gain the trust of the public while letting government tap into the tech savvy of private industry. 

He said it would be the most appropriate regulatory model because it would have the flexibility to adapt to swiftly changing technology that a "rigid command-and-control" regime lacks. 

He also said the DMRB's rulemaking authority should cover things including "interoperability, self-preferencing, non-discrimination and data portability."

He said the resulting rules would need "limited" review and sign-off by DOJ or some other agency. 

Delrahim also had some legislative proposals on the merger front. 

Also Read: FTC, DOJ Big Tech Investigations Suffer Overlap Issues

He said that Congress should pass a new law that any further acquisitions in a market by a firm with more than 50% market share in that market be presumptively anticompetitive, rebuttable only by a showing that the merged company could not exercise market power or that the anticompetitive effects are outweighed by pro-competitive benefits.

One of Justice's concerns about Big Tech is that it got and stayed that way by buying up competitors before they raised red flags on antitrust grounds. He said the presumption should apply "regardless of the size of the target company," which would help address that concern.

The Judge hearing the Department of Justice's challenge to California's net neutrality law has rescheduled a Jan. 26 hearing, citing the caseload of the court and the complexity of the issue.

Also Read: House Dems Press Biden AG Nominee to Drop Suit

The new date is Feb. 23, which will give the new Biden Justice Department, which takes over after the Jan. 20 inauguration, a chance to decide whether it wants to continue the challenge. 

The court made it clear it wanted an answer to that pressing question. "The Court orders the parties to meet and confer (after January 20, 2021) and to file a status conference statement by February 9, 2021, informing the Court whether the United States of America intends to pursue this case further, or whether, upon review by the Biden Administration, it will file a stipulation or motion to dismiss this lawsuit. 

Also Read: California Committee Approves Tough New Net Neutrality Bill

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The FCC, backed by Justice, filed suit, as did ISPs.

The law's implementation was stayed pending resolution of those legal challenges.

The America First-focused Trump Administration is going after Facebook for allegedly discriminating against U.S. workers in favor of immigrants.

The Department of Justice has sued the company alleging it "refused to recruit, consider, or hire qualified and available U.S. workers for over 2,600 positions that Facebook, instead, reserved for temporary visa holders it sponsored for permanent work authorization (or “green cards”)."

It is seeking "appropriate" civil penalties--it did not suggest a figure--back pay for U.S. workers denied employment due to the alleged discriminations and an end to the alleged discrimination.

Related: Trump's Reported Visa Suspension Draws High-Tech 'Boos'

DOJ said the suit comes after a two-year investigation that found that the company intentionally created a system that denied qualified U.S. workers a fair shot at jobs averaging over $150,000 per year. 

"Our message to all employers — including those in the technology sector — is clear," said assistant attorney general Eric S. Dreiband of the Civil Rights Division, "you cannot illegally prefer to recruit, consider, or hire temporary visa holders over U.S. workers.”

DOJ said Facebook failed to advertise the openings on its careers web site.

The tech sector has been a big critic of the Trump immigration policies and their impact on securing top talent from abroad.

For example, the Consumer Technology Association has also long pushed for allowing more high-skilled workers into the country to diversify the tech brain trust.

"Facebook has been cooperating with the DOJ in its review of this issue and while we dispute the allegations in the complaint, we cannot comment further on pending litigation," said a spokesperson for the company.

The U.S. Department of Justice is once again getting in the way of a possible merger between the country’s two big satellite TV operations, DirecTV and Dish Network. 

Citing what appear to be real inside sources, the New York Post reports that DOJ officials are still cool to the combination of the two declining pay TV companies. Regulators reportedly want time for fixed 5G wireless internet services to proliferate to broadband-deprived rural areas, regions in which satellite remains an in-demand option for delivering pay TV services. 

Regulators fear combining the two companies would result in higher prices for rural consumers, including those situated on tribal lands. 

After waiting over a year for the DOJ to pore through its antitrust concerns regarding its $85 billion purchase of Time Warner Inc., AT&T, meanwhile, is said to be reluctant to get into any deal that once again raises regulator antitrust hackles. 

Also read: AT&T: Taking a Mulligan on Media

Two weeks ago, the Post reported that AT&T was in the second round of securing bids for its struggling DirecTV operation. Bids, the report said, were coming in on the low side, at around $15.75 billion, plus $18 billion of assumed debt. Surprised analysts had pegged the figure in the $20 billion range. AT&T paid $49 billion for DirecTV, closing on the deal in July 2015 after haggling for more than a year with the DOJ. 

Analysts have been publicly encouraging of a DirecTV-Dish merger. On Oct. 8, LightShed Partners’ Walter Piecyk blogged, “While AT&T may elect to take a multi-step approach that involves private equity, we believe the end game for DirecTV is Dish. This would provide a material deleveraging event for both companies and present a new challenge for broadcast/cable network programmers.”

Regulators reportedly also stood in the way of a proposed tie-up between the two satellite companies two years ago. And the agency famously sued to stop a $26 billion merger of DirecTV and the erstwhile EchoStar-Dish in 2002. 

Eighteen years ago, the two satellite TV companies were sexy, up-and-coming pay TV alternatives to cable. 

Today, DirecTV has shed a third of its user base since AT&T bought it, closing the second quarter with just 14.3 million subscribers. Dish Network has only around 9 millions remaining linear satellite TV subscribers, and the company is investing virtually all of its available resources these days into building out a national 5G wireless network. 

The Justice Department has provided Congress with a draft of its remake of Section 230 of the Communications Decency Act. The draft reflects DOJ's June recommendations and is meant to effect President Donald Trump's desire to hold social media sites to new standards of content moderation, stemming from his charge that they unfairly censor conservative speech.

Section 230 provides websites with immunity from civil liability for most of their decisions about what content to post or not to post.

Related: Trump Tackles the Edge

The key to the draft legislation is that it would make clear that "when interactive computer services willfully distribute illegal material or moderate content in bad faith, Section 230 should not shield them from the consequences of their actions," said Deputy Attorney General Jeffrey Rosen.

“For too long Section 230 has provided a shield for online platforms to operate with impunity,” said Attorney General Bill Barr in unveiling the draft. “Ensuring that the internet is a safe, but also vibrant, open and competitive environment is vitally important to America. We therefore urge Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate criminal activity online.”

The Administration has separately asked the FCC to regulate social media content.

The Computer & Communications Association (CCIA) was troubled by the draft, as well as Barr's reported plans to meet with Republican attorneys general Wednesday (Sept. 23) to talk about what CCIA calls unsubstantiated claims that social media is biased against conservatives.

“Amid a pandemic and an election, undermining the tools social media companies use to respond to problematic content like disinformation is more dangerous than ever," said CCI president Matt Schruers. "The U.S. Government should be enabling efforts to address nefarious content and behavior, not hamstringing them in misguided pursuit of political gain.” 

Related: FCC As Edge Regulator

The following is DOJ's outline of what its draft would do:

"Promoting Transparency and Open Discourse

"First, the draft legislation has a series of reforms to promote transparency and open discourse and ensure that platforms are fairer to the public when removing lawful speech from their services.

"The current interpretations of Section 230 have enabled online platforms to hide behind the immunity to censor lawful speech in bad faith and is inconsistent with their own terms of service. To remedy this, the department’s legislative proposal revises and clarifies the existing language of Section 230 and replaces vague terms that may be used to shield arbitrary content moderation decisions with more concrete language that gives greater guidance to platforms, users, and courts. 

"The legislative proposal also adds language to the definition of “information content provider” to clarify when platforms should be responsible for speech that they affirmatively and substantively contribute to or modify.

"Addressing Illicit Activity Online

"The second category of amendments is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims. 

"Section 230 immunity is meant to incentivize and protect online Good Samaritans. Platforms that purposely solicit and facilitate harmful criminal activity — in effect, online Bad Samaritans — should not receive the benefit of this immunity. Nor should a platform receive blanket immunity for continuing to host known criminal content on its services, despite repeated pleas from victims to take action. 

"The department also proposes to more clearly carve out federal civil enforcement actions from Section 230. Although federal criminal prosecutions have always been outside the scope of Section 230 immunity, online crime is a serious and growing problem, and there is no justification for blocking the federal government from civil enforcement on behalf of American citizens.

"Finally, the department proposes carving out certain categories of civil claims that are far outside Section 230’s core objective, including offenses involving child sexual abuse, terrorism, and cyberstalking. These amendments, working together, will be critical first steps in enabling victims to seek redress for the most serious of online crimes."

“President Trump’s Section 230 legislation is a mess, but one thing is clear – the proposed changes would make it harder to stop the misinformation and disinformation spread by the President and foreign governments," said Rep. Frank Pallone (D-N.J.), chairman of the House Energy & Commerce Committee. “Protecting Trump’s ability to lie to the public has been a hallmark of his presidency. We’ve seen it when he threatened broadcast stations, cable channels, reporters and now social media. Luckily, it is the job of Congress, not the President, to rewrite legislation. Undoubtedly, Section 230 reform is needed and important, but it should promote democracy and the public good – not further division and confusion.”

The Federal Trade Commission and Department of Justice are seeking comment on a couple of proposed changes to the automatic Hart Scott Rodino (HSR) antitrust reviews, which are required of large mergers (ones valued at at least $94 million).

The FTC and DOJ divide up antitrust reviews, with DOJ generally handling the media merger reviews.

The agencies are proposing to change the definition of the acquiring company to include "associates." It is a way to capture the changes in the financial structure of acquiring entities by expanding the definition to capture "all entities a parent entity controls directly or indirectly and "all associates of the ultimate parent entity.

Currently the rules do not require disclosure of substantive information about the complete structure of the acquiring entities like limited partnerships and limited liability companies. Now the FTC will get info on the entire family of funds because treating them as separate entities "is often at odds with the realities of how fund families and MLPs are managed."

Related: Trump Administration Updates Vertical Merger Guidelines

The FTC, which has long contemplated exempting the acquisition of 10% or less of the voting securities in a company, wants to finally add that exemption to HRS reporting requirements.

But there are exemptions from the exemption. It would not be available to an acquiring company in a vertical relationship with the acquired valued at more than $10 million. "There can be important competitive implications in vertical relationships, and the Agencies have a strong interest in reviewing transactions that create or expand vertical relationships," the FTC said. It would also not apply if the acquiring entity is a competitor to the company it is acquiring, or even has more than a 1% stake in a competitor. 

Related: FTC Expands Merger Approval Lookbacks

Separately, the FTC is looking at whether the HSR review needs to be further modified, including perhaps lowering the $94 million threshold for triggering an HSR review to better capture smaller Big Tech mergers that wind up having large impacts.

Big Tech took another hit in Washington Friday as six people were indicted for bribing Amazon employees to get sales advantages and to disadvantage competitors in the powerhouse online market. It was an unfair competitive advantage the Justice Department said was worth in excess of $100 million and included reinstating suspect products like dietary supplements and potentially dangerous electronics.

The defendants were charged with conspiracy to use a communications facility to commit commercial bribery, as well as conspiracy to access a protected computer without authorization, conspiracy to commit wire fraud, and wire fraud itself.

According to Justice, the accused paid over $100,000 to corrupt most of a dozen Amazon employees and contractors, who proceeded to facilitate attacks on competitors' accounts and listings, provide information on Amazon's internal algorithms and to benefit the defendants by reinstating products that had been suspended or blocked from Amazon, including dietary supplements that were the subject of consumer complaints, electronics identified as flammable, and products flagged for IP violations.

They also reinstated accounts that had been identified as deceiving consumers.

Also, in exchange for bribes the employees and contractors increased the defendant's storage limits in Amazon warehouses and provided insider information of the most successful online ad campaigns and product listings.

The defendants will make their initial appearances in a U.S. District Court in Seattle Oct. 15. They face up to a $250,000 fine and 15 years in prison on the bribery and unauthorized access charges and up to $250,000 and 20 years in prison for the conspiracy and wire fraud.

“As the world moves increasingly to online commerce [propelled in part by the COVID-10 pandemic], we must ensure that the marketplace is not corrupted with unfair advantages obtained by bribes and kick‑backs,” said U.S. Attorney Brian T. Moran in a statement. “The ultimate victim from this criminal conduct is the buying public who get inferior or even dangerous goods that should have been removed from the marketplace. I commend the investigators and cybersecurity experts who have worked to identify and indict those engaged in these illegal schemes.”

The Department of Justice has created the a new office in the Antitrust division to oversee enforcement of consent decrees, like the one that allowed Sprint and T-Mobile to merge.

The Office of Decree Enforcement and Compliance will have the primary responsibility for enforcing consent decrees and judgments in civil matters and advise the criminal section when parties seek credit for corporate compliance programs. 

Related: DOJ Updates Vertical Merger Guidelines 

It will also be the point of contact for anyone with information on possible violations of final judgments. 

Antitrust Division chief Makan Delrahim is no big fan of conditioned mergers, arguing that those are efforts to make illegal mergers legal, with DOJ having to act as an ongoing monitor. 

“The Office of Decree Enforcement and Compliance will ensure the American consumer fully benefits from the Antitrust Division’s hard work identifying anticompetitive mergers and conduct,” said Delrahim. “We are building on our recent successes in Live Nation and CenturyLink. Those matters show how important it is to enforce our consent decrees vigilantly.” 

Last week, Justice and broadband/telecom company CenturyLink settled allegations that the company violated the conditions of its acquisition of Level 3. 

The Office of Decree Enforcement and Compliance will be headed Lawrence Reicher, most recently counsel to the assistant attorney general (Delrahim). 

California’s net neutrality law should be blocked because federal law pre-empts the state statute, the U.S. Justice Department argued in asking a federal judge to overturn a state law reviving many tenets of the FCC’s 2015 Open Internet Order.

The Justice Department said federal statutes pre-empt the net neutrality law passed in California’s capitol.

ACA Connects and other ISP organizations filed similar motions to put a hold on California enforcement of state law SB 822, the California Internet Consumer Protection and Net Neutrality Act, which they said conflicts with the 2018 Restoring Internet Freedom Order, the benchmark rule of the early Ajit Pai FCC.

The government is seeking a preliminary injunction to block California from being able to enforce its law. In 2018, California agreed not to enforce its own state net neutrality law until a final court decision on the FCC repeal.

The Justice Department did not reply to a Multichannel News request about the timing of the Aug. 5 court challenge.

The California attorney general's office said it is reviewing the Justice Department's filing "and look[s] forward to defending California’s state net neutrality protections," according to a Reuters report. Large tech companies and consumer groups have embraced the California law. The court schedule may mean there will be no decision on the Justice Department request until October.

Meanwhile, Vermont Attorney General T.J. Donovan has agreed to hold off net neutrality litigation in that state pending a decision in the California case, according to ACA Connects. The association and other organizations entered a stipulation last week to stay enforcement of the Vermont law pending further discussions between the groups and Vermont officials.

The Department of Justice has released a report recommending an overhaul of the 1946 Administrative Procedure Act (APA) to better address the size and power of regulatory agencies, power that courts have enlarged, DOJ points out.  

That overhaul would have to come from Congress.

The Trump Administration has made the "eliminate two regulations for every new regulation" a centerpiece of its deregulatory philosophy. 

APA is the law that provides the procedural framework for regulatory decisionmaking, including the FCC. When an FCC rule is challenged in court as "arbitrary and capricious," that is invoking the APA's prohibition on such decisionmaking. 

The report, Modernizing the Administrative Procedure Act, makes it clear DOJ thinks the APA is past due for change.  

Deputy Attorney General Jeffrey A. Rosen says in the forward to the report that reform is needed "to better service the modern regulatory state."   

Among the ideas Rosen offers up as possible reforms are from the Regulatory Accountability Act introduced in the last Congress. Those" best practices" include 1) requiring agencies to "fully disclose data and other information used in rulemakings"; 2) requiring minimum comment periods for "major rules"; codify the cost-benefit analysis that have been done so far by executive orders--which don't apply to independent agencies like the FCC and FTC; 4) a mandated consideration of a "reasonable number of alternatives to an agency’s preferred course of action," and more. 

Importantly, the Act would extend those to independent agencies not covered by the relevant executive orders, which Rosen said "multiple panelists" recommended.  

The Act would also provide more rigorous procedures for "high impact" and "major" rules. The former is defined as "rules likely to have an economic impact of $1 billion or more, and “major” rules are those as ones "likely to have an economic impact of $100 million or more or to significantly impact the economy in other ways." He said those are the rules that "can shape the fate of entire industries." 

Related: DOJ Looking at APA Changes

Those are rules that the Act would require get rigorous cost-benefit analysis and of those aforementioned "reasonable alternatives." It would also require public hearings for those rules.  

The report is the work product of a Dec. 6, 2019, DOJ summit appropriately entitled  the Modernizing the Administrative Procedure Act.

The Justice Department said that it believes Avanci's 5G connected car licensing platform passes antitrust muster.

Justice signaled its sign-off in a business review letter. Essentially Avanci sought the review from Justice, outlining what its platform does, which is essentially provide licensing for IP from many different patent holders into a single licensing transaction, in this case for car systems connected by 5G, and asking for DOJ's seal of approval, as it were. 

Justice concluded that Avanci's bundling of standard-essential patents into one agreement could make licensing those patents "related to vehicle connectivity more efficient by providing automakers with a 'one stop shop' for licensing 5G technology." 

"The Department has concluded that, on balance, and based on the representations in Avanci’s letter request, Avanci’s proposed 5G Platform is unlikely to harm competition," DOJ said. But it reserved the right to challenge the platform if, in actual operation, it is anticompetitive "in purpose or effect." 

National Association of Broadcasters president Gordon Smith defended music licensing consent decrees Tuesday (July 28) at a Department of Justice workshop on competition the performance rights licensing regime. 

He said that the decrees must remain in place, and in their current form. "Changing or eliminating sections or paragraphs or sentences…or even words in the decrees can have harmful and unintended consequences," he said, and would require public input on any proposed changes in any event. 

Justice a year ago launched its latest review of the 75-year-old consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), which collectively handle music licensing and fees for music on video and audio platforms. 

The decrees circumscribe how those organizations can provide rights to public performances, but Justice, as it had earlier signaled, is reviewing those agreements to see if they should be maintained as is, terminated or modified (as the 1941 decrees have been before, ASCAP most recently in 2001 and BMI in 1994. 

The decrees "require ASCAP and BMI to issue licenses covering all works in their repertory upon request from music users. If the parties are unable to agree on an appropriate price for a license, the decrees provide for a “rate court” proceeding in front of a U.S. district judge." 

Broadcasters said a blanket license regime, rather than one where they would have to identify and get rights to each piece of music they play, is the only workable approach, a point Smith made in his testimony. 

Smith said Justice needs to resolve the fractional licensing issue, in which a court, mistakenly in NAB's assessment, ruled that the consent decrees do not require full-work licensing. 

As to the impact of phasing out the blanket license consent decrees, as BMI and ASCAP would prefer, Smith said the impact on television could be severe penalties for copyright infringement.  

"Each day, TV stations have music interspersed throughout their programming," he said. "Much of those musical performances occur in the background of stations’ movies, television shows, live sporting events, local news and commercials. Stations have no editorial control for much of their content, such as network and syndicated programming, live events and commercials. So, if a station lacked the right to publicly perform a single musical work because it was in a repertory it did not license, it would have no practical ability to mitigate the risk that an offending song might air. This would expose the station to the threat of significant penalties under federal copyright law." 

Smith said that beyond rate issues, NAB opposes allowing so-called selective withdrawals. "As television and radio broadcasters continue to innovate in the digital space to better serve our audiences, any modification to the decrees that would enable rights holders to selectively withdraw from ASCAP and BMI to leverage their market power in direct negotiations with digital services would raise these same anticompetitive concerns," he said. 

National Association of Broadcasters president Gordon Smith defended music licensing consent decrees Tuesday (July 28) at a Department of Justice workshop on competition the performance rights licensing regime. 

He said that the decrees must remain in place, and in their current form. "Changing or eliminating sections or paragraphs or sentences…or even words in the decrees can have harmful and unintended consequences," he said, and would require public input on any proposed changes in any event. 

Justice a year ago launched its latest review of the 75-year-old consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), which collectively handle music licensing and fees for music on video and audio platforms. 

The decrees circumscribe how those organizations can provide rights to public performances, but Justice, as it had earlier signaled, is reviewing those agreements to see if they should be maintained as is, terminated or modified (as the 1941 decrees have been before, ASCAP most recently in 2001 and BMI in 1994. 

The decrees "require ASCAP and BMI to issue licenses covering all works in their repertory upon request from music users. If the parties are unable to agree on an appropriate price for a license, the decrees provide for a “rate court” proceeding in front of a U.S. district judge." 

Broadcasters said a blanket license regime, rather than one where they would have to identify and get rights to each piece of music they play, is the only workable approach, a point Smith made in his testimony. 

Smith said Justice needs to resolve the fractional licensing issue, in which a court, mistakenly in NAB's assessment, ruled that the consent decrees do not require full-work licensing. 

As to the impact of phasing out the blanket license consent decrees, as BMI and ASCAP would prefer, Smith said the impact on television could be severe penalties for copyright infringement.  

"Each day, TV stations have music interspersed throughout their programming," he said. "Much of those musical performances occur in the background of stations’ movies, television shows, live sporting events, local news and commercials. Stations have no editorial control for much of their content, such as network and syndicated programming, live events and commercials. So, if a station lacked the right to publicly perform a single musical work because it was in a repertory it did not license, it would have no practical ability to mitigate the risk that an offending song might air. This would expose the station to the threat of significant penalties under federal copyright law." 

Smith said that beyond rate issues, NAB opposes allowing so-called selective withdrawals. "As television and radio broadcasters continue to innovate in the digital space to better serve our audiences, any modification to the decrees that would enable rights holders to selectively withdraw from ASCAP and BMI to leverage their market power in direct negotiations with digital services would raise these same anticompetitive concerns," he said. 

Taylor Owings, counsel to Department of Justice Antitrust Division chief Makan Delrahim and a leading figure in the division's review of online platforms and antitrust, has been named acting chief of staff and, eventually, acting senior counsel for the division. 

Related: House Continues Deep Dive into Digital Antitrust and Big Tech 

Owings has been counsel to Delrahim since February 2018. Chief of staff William Rinner will serve as senior counsel until his departure "in the coming months." 

Related: DOJ Working with States on Edge Investigation 

Owings has been served on the leadership team for the ongoing review of whether Big Tech platforms bought their way up to monopoly and whether antitrust oversight needs to pivot to capture the speed at which Big Tech can capture market share. She received the Attorney General's Award for Distinguished Service in 2019. 

The MIC coalition is telling the Justice Department not to later or pull the plug on longstanding music licensing consent decrees, saying that particularly in the time of pandemic that could add chaos to catastrophe. 

That came in comments in advance of next week's DOJ public workshop on the decrees and their antitrust implications.

The Justice Department last June officially launched its latest review of the 75-year-old consent decrees with The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), which collectively handle music licensing and fees for music on video and audio platforms. 

The decrees circumscribe how they can license rights to public performances, but Justice, as it had earlier signaled, is reviewing those agreements to see if they should be maintained as is, terminated or modified (as the 1941 decrees have been before, ASCAP most recently in 2001 and BMI in 1994). 

The decrees "require ASCAP and BMI to issue licenses covering all works in their repertory [a blanket license] upon request from music users. If the parties are unable to agree on an appropriate price for a license, the decrees provide for a “rate court” proceeding in front of a U.S. district judge." 

ASCAP and BMI have suggested changes on a glide path to removing the decrees, or what the MIC coalition suggests would be a road to ruin. 

The MIC Coalition's members are an eclectic group including the National Association of Broadcasters and the Consumer Technology Association but also the National Association of American Wineries and the Brewers Association. The unifying principle is that they all favor blanket over per-performance rights fees. 

"MIC members spend more than a billion dollars annually in fees to license the right to publicly perform musical works and we profoundly depend on the consent decrees to ensure that we can license those rights under terms that are reasonable and free from monopolistic pricing," they told Justice. 

The coalition strongly opposes any modification or termination of the decrees, which the they argue "include important, pro-competitive elements that benefit licensees, members of the songwriting community, and consumer." 

They included a reference to COVID-19, saying that the impact of the virus on their members, including on the ad revenues of broadcasters and bar and restaurant tabs, translates to a catastrophic economic hit that has revealed for many the "tenuous" nature of the thin green line, as it were, between staying in business and shuttering. 

"Creating more uncertainty – and even chaos – in the music licensing space by modifying or terminating the existing consent decrees would be a risky proposition at the best of times, and even absent the threat of the current pandemic," it said. "It would effectively eliminate critical safeguards that help provide business certainty and protect MIC members from anti-competitive behavior; thereby making our path to recovery in a post-COVID environment extremely more difficult." 

In what appears to be a massive and decade-long data heist, the Justice Department has successfully indicted two hackers allegedly working both with China's Ministry of State Security and for their own profit, who DOJ said stole terabytes (and hundreds of millions of dollars worth) of intellectual property, confidential business information and personal information over 10 years and in over 10 different countries, including the U.S. 

The ll-count indictment, which was returned by a grand jury in Spokane, Wash., charges Li Xiaoyu (李啸宇), 34, and Dong Jiazhi (董家志), 33, with conducting the hacking campaign, targeting industries as divergent as high tech manufacturing, gaming software and solar energy, as well as COVID-19 research. 

The hacks involved hundreds of companies, governments, non-governmental organizations (NGOs), dissidents, clergy, and human rights activists, often targeting companies in countries with strong tech industries. 

DOJ said they conducted the hacks from a safe haven provided by the Chinese government, and with help from the government.

Related: Justice Charges Chinese Hackers

One hack involved a California software gaming company (not identified other than as a subsidiary of a Japanese company). They allegedly stole the source code for two games, one of which had not yet been released. Another was of a U.S. educational software company and included the personally identifiable information (PII) of millions of teachers and students.*

There were also gaming software hacks of companies in Sweden and Lithuania. 

“China has now taken its place, alongside Russia, Iran and North Korea, in that shameful club of nations that provide a safe haven for cyber criminals in exchange for those criminals being ‘on call’ to work for the benefit of the state, here to feed the Chinese Communist party’s insatiable hunger for American and other non-Chinese companies’ hard-earned intellectual property, including COVID-19 research,” said Assistant Attorney General for National Security John Demers in announcing the indictments. 

Related: FCC Seeks Input on Excluding Foreign Tech 

The hack was first identified on Department of Energy computers in Eastern Washington state.  

The hackers allegedly placed malicious shell programs and credential-stealing software on the computers they hacked--often hiding them in the recycle bin--allowing them to hijack those computers. 

The indictment charges the hackers with "conspiring to steal trade secrets from at least eight known victims, which consisted of technology designs, manufacturing processes, test mechanisms and results, source code, and pharmaceutical chemical structures." 

The defendants could face up to 50 years in prison. They are each charged with one count of conspiracy to commit computer fraud (a maximum of five years in prison); one count of conspiracy to commit theft of trade secrets (a maximum of ten years); one count of conspiracy to commit wire fraud, (20 years maximum; one count of unauthorized access of a computer (five years maximum) and seven counts of aggravated identity theft (a mandatory sentence of two non-consecutive years).  

Related: House GOP Leaders Tell President to Get Tougher on Chinese Hackers

House Energy & Commerce Committee Republicans, who just this week called on the Trump Administration to come down harder on China's hacking regime (see link, above), praised the move but want more. 

"Earlier this week, Energy and Commerce Committee Republican Leader Greg Walden (R-Ore), Foreign Affairs Committee Republican Leader Michael McCaul (R-Tex.), and Financial Services Republican Leader Patrick McHenry (R-N.C.) wrote a letter to President Trump urging action from the administration, including imposing sanctions, to hold China-linked hackers accountable," they said in response to the DOJ action. "Today, the Department of Justice indicted two Chinese hackers – working on behalf of the Chinese government – on 11 counts of hacking in an effort to access critical information, including sensitive data about potential COVID-19 vaccines. This is a strong step in the right direction, but more must be done."

Among the more they are looking for it more transparency. They have asked for a briefing from the Department of Treasure (and State) as well as whichever other agency the President deems relevant, so they can get a sense of the scope both of the attacks and the U.S. response.

* A spokesperson for major distance learning player Discovery Education said it was not the unnamed ed tech company cited in the DOJ indictment.

Calling the immunity "outdated," the Justice Department has released a set of proposed reforms for Sec. 230 of the Communications Decency Act, which currently provides a carveout from civil liability for websites' moderation, or not, of most third-party content. DOJ said the section was "ripe for reform." 

Those would include essentially preventing websites from removing anything but illegal content by changing the language that allows a site to remove "otherwise objectionable" material without civil liability to only content moderation that removes "unlawful" material or that which "promotes terrorism." 

Currently Sec. 230 immunity applies to “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene...or otherwise objectionable.” 

The "otherwise objectionable" language in the section has allowed for content moderation according to a site's own standards for its online community, which can vary from site to site, as it does between Twitter, which moderates political content, and Facebook, which does not. 

The President targeted the section in an Executive Order last month and enlisted the Commerce and Justice Departments, and if it agrees, the FCC, in an effort to regulate online content to prevent what the President says is censorship of conservative speech. 

But Justice said its recommendations are after a 10-month review and in response to bipartisan concerns about the scope of the immunity and are meant to get at "illicit material." The President's order was targeted at political speech.  

But the order does get at all forms of speech by proposing to read "otherwise objectionable" out of the protection since obscenity is already illegal (though itself a judgment call), as is, by definition, "unlawful" conduct.

Related: Trump Threatens to Shut Down Social Media 

The reforms include a clarification of "good faith," one of the central issues in the President's Executive Order. Trump wants the FCC to come up with "the conditions under which an action restricting access to or availability of material is not "taken in good faith," and so would violate a website's terms of service. 

Among the proposed reforms are: 1) "a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services. Those would include child abuse, terrorism, and cyber-stalking"; 2) "a statutory definition of “good faith” to clarify its original purpose. The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations. These measures would encourage platforms to be more transparent and accountable to their users"; and 3) "clarify" that Sec. 230 does not apply to civil actions brought by the government. 

It would also "clarify" that Sec. 230 is not immunity from antitrust claims and that removal of content consistent with terms of service does not render an online platform a publisher or speaker for the other content on its service. 

There are definitely bipartisan concerns about issues like sex trafficking and fomenting terrorism, for example. 

"These reforms are targeted at platforms to make certain they are appropriately addressing illegal and exploitative content while continuing to preserve a vibrant, open, and competitive internet," said Attorney General William Barr. "These twin objectives of giving online platforms the freedom to grow and innovate while encouraging them to moderate content responsibly were the core objectives of Section 230 at the outset." 

Barr said the government can't delegate the protection of Americans' safety "purely to the judgment of profit-seeking private firms." 

“This is a shockingly ill-conceived proposal," said Computer & Communications Industry Association President Matt Schruers, who participated in a February DOJ workshop on the issue. "Amid a pandemic, pervasive racial injustice, in an election season, the Justice Department proposes to remove from this critical statute the language that provides legal certainty for the removal of everything from coronavirus misinformation to racism to disinformation by foreign intelligence operatives. Why would the Justice Department want to limit companies’ ability to fight these threats?”

The Justice Department is invoking the First Amendment--and the peaceful protests of George Floyd's murder--to support peaceful protest assemblies in the time of COVID-19, specifically a gathering to protest COVID-19-related restrictions in California.

The Justice Department has filed an amicus (friend of the court) brief in the Ninth Circuit in support of Ron Givens and Christine Bish, who are suing the State of California because they want to hold a protest with 500-1,000 people on the grounds of the State Capitol Building. 

Justice said a district court was wrong to to side with the plaintiffs against what DOJ said it's the state's "total ban on peaceful protests." 

"While States have broad authority to protect the public during the COVID-19 pandemic, the First Amendment does not give them carte blanche to ban peaceful public protests and rallies," Justice told the court. 

DOJ actually cited the George Floyd peaceful protests--the ones that got a little less so after the Attorney General had protesters moved to increase the perimeter around the White House. 

"[T]he real and legitimate national outcry over George Floyd’s tragic killing has shown the importance of peaceful public protests to maintaining our civic fabric—and has highlighted the extreme nature of a blanket protest ban in California," DOJ said.  

“Political speech in traditional public gathering spaces is at the core of the First Amendment’s protection of speech and assembly,” wrote Assistant Attorney General Eric Dreiband of DOJ's Civil Rights Division.  

Givens is a firearms instructor in Sacramento who is protesting delays in background checks "purportedly due to COVID-19," said Justice. Bish a Republican candidate for the House who wants to protest the state's handling of the coronavirus response. 

The Justice Department has arrested and charged a Peoria, Ill., man with using the internet to incite rioting there. A hearing is scheduled for June 8.

The complaint alleges that from May 31 to June 1, Ca’Quintez Gibson, 26, used Facebook posts to "orchestrate [an] effort to incite riots, incite looting, and cause general mayhem."

“We will use all available resources to identify bad actors and get them off the streets to keep our communities safe," said U.S. Attorney John Milhiser.

Gibson appeared in several Facebook Live video posts, including one referencing a gathering at a Peoria mall and saying: "Y’all gonna see me there. And we ain’t with that peaceful s---.” and, “I’m not watchin’ no other city on … TV. They sent that b--- up. … Let’s send our s--- up.”

Another appeared to show groups attempting to break into stores in a strip mall and another saying "mission accomplished."

“The freedom to gather and peacefully protest is a right afforded to all Americans under the 1st Amendment to the Constitution," said Sean Cox, FBI special agent in charge, Springfield Division. "At the FBI, we take an oath to uphold the Constitution of the United States and Protect the American People. When individuals attempt to use the freedoms as a shield to commit acts of violence in our communities, those acts are not protected expressions."

Both the FCC and the Department of Justice are looking for answers from China Telecom (Americas) on whether it is trying to suppress some information in the government's review of its ability to operate in the U.S. 

Related: FCC Flags More Chinese Telecoms 

In April, the FCC issued a "show cause" order to China Telecom (Americas) directing it to justify why the FCC should not start proceedings to revoke its licenses to operate in the U.S., something the Executive Branch has recommended the FCC to do. 

That was out of concern that current or potential Chinese government influence could makes the company a national security threat to the network security of critical 5G nets in the U.S.

On May 1, according to the FCC, China Telecom (Americas) asked the FCC to disclose any FISA (Foreign Intelligence Surveillance Act)-related material the FCC had obtained in its review. On May 19, the Justice Department said it was unclear whether China Telecom Americas was trying to challenge the legality of that FISA surveillance and "suppress" it from consideration in the FCC's review of the company's license to operate in the U.S. 

DOJ asked the FCC to get and answer, and the FCC is now asking the company to do so by June 8, when China Mobile (Americas') response to the FCC's show cause order is due.

While the Senate voted two weeks ago to reauthorize the USA Freedom Act, it has run into trouble in the House that makes it even less likely to pass muster with the Trump Administration, which now opposes the bill reauthorization. 

The act restricts indiscriminate bulk collection of data by the NSA, part of an effort to rein in government mass surveillance programs adopted in the wake of 9/11.  

It has become something of a legislative tennis match. The House passed a version in March, but the Senate changed it (in ways the Trump Administration did not like), so it had to go back to the House to re-vote. But the bill now has new changes there that have prompted the Justice to step onto the court, including an amendment that would prevent law enforcement from searching web browsing history without a narrowly tailored warrant. 

The amendment, from Rep. Zoe Lofgren (D-Calif.), stipulates that: 

"If the government is not sure if you’re a U.S. person, but you could be, the government cannot get your internet activity without a Title I FISA warrant. 

"If the government wants to order a service provider to produce a list of everyone who has visited a particular website, watched a particular video, or made a particular search query: the government cannot make that order unless it can guarantee that no U.S. persons’ IP addresses, device identifiers, or other identifiers will be disclosed to the government. 

"This amendment does not allow for the incidental collection of U.S. persons’ web browsing or search information when the target is a specific-selection term that would or could produce such information. 

"This prohibition is a strict liability-type provision. (It isn’t a knowledge standard or a reasonable-belief standard. An order must not result in the production of a U.S. person’s web browsing or search information.) 

"If the order would or could result in the production of a U.S. person’s web browsing or search information, the government cannot order it without a Title I FISA warrant that must be narrowly tailored toward the subject of the warrant. 

But that provision, and now the underlying bill, does not fly with Justice. 

Assistant Attorney General Stephen Boyd said Wednesday (May 27) in a statement: “The Department worked closely with House leaders on both sides of the aisle to draft legislation to reauthorize three national security authorities in the U.S.A. Freedom Act while also imposing reforms to other aspects of FISA designed to address issues identified by the DOJ Inspector General. Although that legislation was approved with a large, bipartisan House majority, the Senate thereafter made significant changes that the Department opposed because they would unacceptably impair our ability to pursue terrorists and spies." 

"Given the cumulative negative effect of these legislative changes on the Department’s ability to identify and track terrorists and spies," said Boyd, "the Department must oppose the legislation now under consideration in the House. If passed, the Attorney General would recommend that the President veto the legislation.” 

The USA Freedom Act was first adopted in 2015 to end the bulk data collection under the USA Patriot Act. The USA Freedom Act must be periodically renewed by Congress or some provisions expire.   

The Department of Justice said it has "disrupted" hundreds of COVID-19 scams. 

As of April 21, DOJ said, the FBI's Internet Crime Complaint Center had checked out more than 3,600 complaints about such alleged scams, including sites that advertised fake vaccines and cures and bogus charities. 

Related: Hill Pushes DOJ to Go After COVID-19 Roboscammers

Among the specific sites it cited were:  

1. "An illicit website pretending to solicit and collect donations to the American Red Cross for COVID-19 relief efforts. 

2. "Fraudulent websites that spoofed government programs and organizations to trick American citizens into entering personally identifiable information, including banking details. 

3. "Websites of legitimate companies and services that were used to facilitate the distribution or control of malicious software." 

DOJ has referred legitimate complaints to the companies managing or hosting the domains, many of which it said have taken down those domains. 

Related: The Latest News on COVID-19 and the Communications Industry

“The department will continue to collaborate with our law enforcement and private sector partners to combat online COVID-19 related crime,” said Assistant Attorney General Brian Benczkowski of the Justice Department’s Criminal Division in a statement. “We commend the responsible internet companies that are taking swift action to prevent their resources from being used to exploit this pandemic.” 

The FBI offered up some tips for avoiding online COVID-19 scams, including 1) paying close attention to the addresses offering information on COVID-19 services or products since they can often differ only slightly from the real one, for example, cdc.com or cdc.org instead of cdc.gov, and 2) ignore all offers of a vaccine, cure or treatment. 

The Trump Administration won't challenge a proposal to create an online market where advertisers can get bids for advertising production services.

The Association of Independent Commercial Producers submitted a proposal to create an online platform where those advertisers can solicit bids from production services companies. In a response, DOJ told the counsel for AICP that while exchanging price and other competitive info can make it easier for competitors to coordinate activity anticompetitively, AICP has designed the platform to prevent that kind of info sharing.

Those include safeguards against information being shared among advertisers and firewalls against AICP accessing the third-party info.

Based on those safeguards and firewalls protecting third-party information, Antitrust Division Chief Makan Delrahim told AICP Justice has no intention of challenging the bidding platform.

Not the White House's problem. That was basically the Justice Department's answer to Playboy reporter and CNN analyst Brian Karem, according to a letter to his lawyers dated April 5. 

Karem had complained that he and other journalists were being excluded from daily White House COVID-19 press conferences while a reporter from One American News (OAN) Network (Chanel Rion) was allowed in, saying that the White House press secretary was engaging in content- and viewpoint discrimination in violation of the First Amendment. 

Related: Shelley Calls Out Trump and OAN Reporter

Karem had his hard passed revoked by the White House last summer but eventually returned at a court's directive after he sued President Trump and White House press secretary Stephanie Grisham. He said his treatment by the press office also violated that court directive.  

But in a letter to Karem's attorney, Ashley Cheung, an attorney in the civil division at the Justice Department, said that it was Justice's understanding that while the Press Briefing Room was White House property, by custom the White House correspondents association determines seating, and that it was WHCA's new virus-related social distancing guidelines--the three-empty-chairs distance between reporters severely cuts down on capacity--that was the culprit, and which was adopted solely by the WHCA.  

"To the extent Mr. Karem has been excluded from the seating rotations, he should direct his complaints to the WHCA, not to the Press Secretary, who has merely acquiesced in this practice," Cheung wrote, according to a copy of the letter.  

Cheung pointed out that the OAN reporter had been invited by the press secretary, while "nothing in the First Amendment or the Due Process Clause requires the White House Press Secretary to extend a personal invitation to Mr. Karem to be her guest." 

As to violating the judge's order, she said the hard pass has been fully restored with "full privileges" and that any restrictions are not based on any actions of the press secretary.

A federal district judge in Washington Wednesday (April 1) ruled that the Department of Justice's settlement of its challenge to the T-Mobile-Sprint merger was in the public interest, paving the way for the closing of the deal. 

Justice and a number of states--Arkansas, Colorado, Florida, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, and Texas--had agreed to the settlement with the companies and Dish. 

Related: Sprint/T-Mobile Merger Will Go Forward 

Part of the settlement was that the combined company had to spin off its prepaid businesses, including Boost Mobile, Virgin Mobile, and Sprint prepaid brands, to Dish, as well as spectrum assets. 

The idea was to seed Dish as a new, eventually facilities-based, wireless competitor given that the deal was reducing the Big Four--AT&T, Verizon, Sprint and T-Mobile--to the Big Three. 

"I am pleased that the court has entered the final judgment, and I appreciate all of the work from Judge Kelly and the district court staff, particularly in the midst of the current COVID-19 disruption,” said Assistant Attorney General Makan Delrahim, who heads DOJ's Antitrust Division. “The T-Mobile-Sprint transaction, as remedied by the Department of Justice, will combine T-Mobile’s and Sprint’s complementary spectrum assets while preserving competition. Our settlement promises to expand output further by bringing Dish’s extensive spectrum holdings to the market. The end result will be strengthened competition with high-quality 5G networks that will benefit American consumers nationwide.” 

A New York Southern District Judge had denied a request by another group of states, led by New York and California, to block the deal, in part because of the DOJ deal remedies. The FCC also approved the deal.

The Justice Department has taken its first enforcement action against COVID-19 fraud. 

According to DOJ, a federal court has issued a temporary restraining order (TRO) against a website, coronavirusmedicalkit.com, hawking a "World Health Organization vaccine kit." 

Related: NY's James Orders End to Bakker Show Coronavirus Treatment Marketing 

There is currently no vaccine, DOJ pointed out. The kits were offered for a "shipping charge" of $4.95.  

The TRO required the access to be immediately blocked, which it was at press time. 

Related: New York Targets Scam Coronavirus Claims

“The Department of Justice will not tolerate criminal exploitation of this national emergency for personal gain,” said Assistant Attorney General Jody Hunt in a statement.  

Attorney General William Barr has told the department to prioritize coronavirus fraud prevention. 

Attention parties with merger regulatory reviews pending or proposed. There are some coronavirus-related changes to the process, said the Department of Justice. 

That is a response to the mass telework directive to government agencies. 

“As the Antitrust Division takes steps to protect the health and safety of its work force and the parties that appear before it, these process changes will ensure that the Division can continue to review transactions efficiently and effectively,” said Assistant Attorney General Makan Delrahim in a statement. 

He said the antitrust division remains "open for business," he said, and ready to work with the business community on vetting mergers. 

The chief changes are: 

1. "For mergers currently pending or that may be proposed, the Antitrust Division is requesting from merging parties an additional 30 days to timing agreements to complete its review of transactions after the parties have complied with document requests. 

2. "If circumstances require, the Division may revisit its timing agreements with merging parties in light of further developments. 

3. "The Antitrust Division will allow electronic filing of Hart-Scott-Rodino submissions. 

4. "The Antitrust Division will conduct all meetings by phone or video conference (where possible), absent extenuating circumstances. 

5. "All scheduled depositions temporarily will be postponed and will be rescheduled using secure videoconferencing capabilities." 

Deputy Attorney General Jeffrey Rosen signaled Tuesday that shaking up or breaking up a major online platform is on the table if the department concludes they have anticompetitively harmed innovation. 

Rosen was speaking at a Free State Foundation policy conference in Washington Tuesday (March 10), where he cited the DOJ suits against Microsoft and AT&T as examples of moves that some say paved the way for innovation.  

Justice is currently reviewing market-leading platforms--like Facebook and Google--which Rosen called a department priority. 

Rosen said that one reason DOJ was focused on market-leading platforms was that innovation was, and has long been, a focus of antitrust law when assessing anticompetitive conduct. 

That means when a merger or acquisition is likely to diminish innovation competition below what would have evolved absent the merger, there is an issue. 

"In thinking more broadly about innovation and antitrust, it can be helpful to look back at some of the technology companies that dominated past eras," he said. "For example, IBM dominated the computer hardware era and Microsoft dominated the software era. As with the evolution of the Bell System and the telecommunications sector, antitrust played a role in all of these transitions as well. The Department of Justice brought antitrust enforcement actions against IBM in 1969 and Microsoft in 1998. One lawsuit was eventually dismissed (IBM), and one ultimately prevailed. Both those enforcement actions coincided with one technology era ending and the next beginning. I just want to say that the Antitrust Division and all of us at DOJ who are responsible for antitrust enforcement are very much aware of this history, and pay close attention to the role of antitrust with regard to technological innovation." 

Related: Groups Praise Big Tech Impact on Small Business

He said that protecting innovation was hardly a new goal of antitrust, but that the rise of Big Tech had put it newly in the spotlight. "Despite the wonders produced by the World Wide Web, some say that innovation in the United States has actually been on a decline in the last two decades, and that the tech giants that produced some of those wonders are in part to blame. Across the spectrum, there are calls for government to act quickly and boldly to help ensure there is room for another wave of innovation that can improve people’s lives." 

While he talked in terms of what "some say" and "suggest: and what others were "calling for," he left the clear impression that what those folks were saying and calling for carried some weight, particularly when it came to Justice stepping in to preserve disruptive innovation, which he suggested had been the case in the suit to break up the Bells and Microsoft's bundling of hardware and software.  

"Obviously, one of the most disruptive innovations...was the development of the telephone in the United States around the turn of the 20th century....As a dominant firm with vast resources and the technological expertise of Bell Labs, the old AT&T Bell System made a number of important innovations in the telecommunications realm and beyond," he said. "But with its dominance cemented, the old Bell System sometimes showed itself resistant to change, in part due to monopolistic incentives and protective regulation, and there were claims that innovation was less than it might have been. The government’s antitrust case against AT&T was filed in 1974, and it has been suggested that the competition and ensuing innovation that followed would not have flourished in that way without the resulting divestiture of AT&T’s local exchanges from its long-distance network and manufacturing businesses around 1984." 

Rosen brought that forward to the present day and Justice's current review of Big Tech.  

"One of the questions that is inevitably present in our antitrust review is whether innovation has declined, as some say, because of monopoly positions held by some of today’s tech platform giants," he said. "As the Seventh Circuit wrote in a monopolization case only two weeks ago, 'the harms that typically flow from a competitive market shifting to total control by a monopolist include…reduced innovation.'  

He said an incumbent monopolist, any incumbent monopolist, has "every incentive" to thwart innovative outsiders." 

One of the things Justice is looking at is whether Big Tech got that way by buying up competitors before the size of those purchases triggered automatic antitrust reviews and whether current antitrust law is lacking in its ability to identify and respond to efforts to "buy up" to monopoly.  It is tough to gauge what competition companies would have provided had they not been bought up.

"Numerous articles have been written about the tech giants’ so-called 'kill zones,' that is, the strategy of buying upstart challengers to remove them as a competitive threat," he said. "Others claim there is no incentive to innovate when a dominant company can simply replicate any new idea itself and, with existing network effects, reap the commercial reward. Still others claim that sharp business practices by entrenched firms have prevented innovators from gaining traction." 

Rosen said he had no answers to the questions he was posing--DOJ is still investigating the market, he pointed out, so he could not speak about it even if it were already drawing some conclusions.  

He said he did not have a timetable for when DOJ would be through with its deep dive into Big Tech. 

To read Rosen's entire speech, go here. 

It would seem a bit of a no-brainer, but a bipartisan pair of senators wants to make sure the government investigation of Google includes search. 

Related: Delrahim Seeks Examples of Online Anticompetitive Conduct 

In a letter to Attorney General William Barr, Sens. Josh Hawley (R-Mo.) and Richard Blumenthal (D-Conn.), who are far apart on the political spectrum, are apparently in agreement that DOJ needs reminding to insure that its antitrust investigation includes Google's search operations. 

They say that while the department is investigating Google's behavior in the online advertising market, they are concerned that it might be focusing too narrowly on online advertising, which the senators say is inextricably linked to is the billions of search results every week that give it that ad dominance. 

Related: Google Hit with $1.7B EC Fine Over Search 

"Narrowing the investigation's focus such that Google's anticompetitive practices dominate the online search market is not captured does a grave disservice to consumers," they wrote.  

The senators have both long sought an antitrust investigation into dominant tech companies in general. Given that Google's advertising operations are "downstream" of its search business, they say focusing on that could miss the "primary" source of anticompetitive conduct. 

They pointed out the EU's $2.7 billion fine of Google three years ago for manipulating search and what they said is ample evidence Google biases search results to "favor its own properties."