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Who Wants to Know? Confidentiality and Transparency in the “Big Tech” Cases

Who Wants to Know? Confidentiality and Transparency in the “Big Tech” Cases

October 11, 2023

The Department of Justice (DOJ) and Federal Trade Commission’s (FTC) war against large technology companies has unquestionably generated tremendous public interest in antitrust enforcement. While public engagement with antitrust is desirable, some have raised issues about a supposed lack of public access to information and limited transparency. Most notably, in DOJ v. Google, which is presently at trial, several commentators have criticized Judge Mehta’s decisions to not allow a publicly accessible audio feed of the trial, remove exhibits initially posted on the DOJ’s website, and prevent public disclosure of information relating to key issues like Google’s relationship with Apple.

Despite just being filed, the Amazon case has already elicited similar concerns regarding public access. Specifically, observers have noted the extent of redactions in the FTC’s complaint, with the FTC issuing a statement shortly thereafter making clear that it shares “the frustration that much of the data and quotes by Amazon executives in the complaint…is redacted.” The FTC added that it intended to oppose Amazon’s motion to seal the information redacted in the complaint, stating that it does “not believe that there are compelling reasons to keep much of this information secret from the public.”

Not all concerns about transparency come from those in favor of the government’s action. In the FTC’s challenge against Meta/Within, then Commissioner Wilson filed a dissent that was heavily redacted by the FTC. As Commissioner Wilson later explained, she dissented from the FTC’s complaint both on “due-process grounds, which require those sitting in a judicial capacity to avoid even the appearance of unfairness,” as well as “federal ethics grounds,” stating that “[d]espite previous disclosures of analogous information Commissioners Rebecca Slaughter and Alvaro Bedoya imposed heavy redactions on my dissent” which “served no purpose but to protect Ms. Khan from embarrassment.”

There are clear rules and best practices in the antitrust context for how to balance the right to public access with well-functioning discovery and trial processes. First, the applicable statutes generally require that information that companies provide to the antitrust agencies in connection with an investigation or transaction is treated as confidential and disclosable only under very limited circumstances. Accordingly, the DOJ and FTC have longstanding policies not to disclose companies’ confidential information except in extremely rare instances. The rationale is simple: companies should be incentivized to be forthcoming in providing information to the agencies without having to worry about the negative effects on their business resulting from disclosure.

To be sure, the agencies are allowed to use confidential information in court. However, parties are permitted to request a protective order to shield their information from public disclosure and provide redacted materials for public consumption. Specifically, under Rule 26(c) of the Federal Rules of Civil Procedure, companies can limit public access to discovery materials if they can show “good cause,” which is a low bar to satisfy in practice. Typically, and as in DOJ v. Google, the parties ultimately agree on a protective order that defines what information will be treated as confidential (and highly confidential) as well as stating that such information will be filed under seal, which will be validated by courts if there are compelling reasons outweighing the benefits of public access.

While critics have alleged inadequate public disclosure in the Google case, the protections on private companies’ information of which they complain reflect the application of this basic and well-established framework. For example, while certain parties requested evidence regarding Google’s relationship with Apple to be unsealed, Judge Mehta’s denial of this request is plainly consistent with case law making clear that the disclosure of commercial information of this kind is improper when it would harm the parties’ competitive standing. By contrast, Judge Mehta has not only required redacted trial exhibits be posted by the end of the day—contrary to the 24-hour period Google requested—but also unsealed what he described as an “embarrassing” document and related testimony for Google because it did not risk competitive harm.

The same general principles apply to the redactions in the Amazon complaint—redactions made by the FTC, and not Amazon—and which encompass third-party information. For example, some have expressed particular concerns about redactions involving statements by Amazon executives. But such an objection is unfounded; a statement made by an Amazon executive does not make its disclosure any more justifiable based on applicable legal standards. Rather, it will depend upon the nature of the statements themselves. And, while it would not be uncommon for several redactions to be removed—with the support of Amazon—the contexts in which the statements and other redactions appear in the complaint suggest that the overwhelming majority would involve the sort of financial and commercial information that is typically protected from public disclosure.

The FTC’s concerns about Amazon’s redactions are belied by its own actions in the Meta-Within case, which subsequent sources have confirmed involved Chair Khan’s disregard of ethics guidance recommending that she recuse herself from the case based on prior statements, creating the appearance of partiality. Moreover, the FTC’s redactions of Commissioner Wilson’s dissent would not seem to be in the public interest, not least because they limit the public’s awareness of potential abuses of government as opposed to the confidential information of private companies. Given similar ongoing concerns, going forward the public may thus have far less reason to be concerned about access to private companies’ competitively sensitive information than ensuring transparency and good government at the DOJ and FTC as they continue their crusade against “Big Tech.”

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