Competition in tech - what’s the impact of the U.S. elections?

As we look to 2021 and the expected inauguration of presumptive President-elect Joseph Biden on 20 January, we have been considering the potential impact of the recent elections and a change in administration.

The switch to a Democratic presidency is likely to bring focus to existing federal enforcement priorities to increase pressure on large tech companies. How this will play out with respect to current and future antitrust enforcement in the sector will in part depend on what leadership appointments are made at the Federal Trade Commission (FTC) and Department of Justice (DOJ). 

These political appointments could result in an expansion of enforcement theories in the sector and the testing new legal theories in the courts. The appointments are currently being developed by a transition team, but are expected to draw heavily from the Obama administration.

More fundamental changes to U.S. competition enforcement and regulation in the tech sector are also possible, depending on the outcome of the January 2021 run-off elections which will decide which party controls the Senate. A shift that would give the Democrats a majority in the House would give the administration a broader mandate to expand the enforcement toolkit available to the agencies and introduce targeted regulation.

With a renewed emphasis on multilateralism, a Biden administration is likely to respond to calls for greater coordination with other jurisdictions. The U.S. has been increasingly looking overseas on competition polices in these markets - particularly the EU which has wide reaching plans for competition regulation in digital markets.

Companies in the tech sector should be aware of the potential for increased collaboration on competition enforcement across jurisdictions. While convergence on legal standards is still far off, further engagement can be expected and companies must be prepared to take a coordinated approach to anti-trust compliance.