International Law

New British Antitrust Legislation Provide Model for U.S. Tech Regulation

September 24, 2025
Administrative Law, Antitrust, EU Law, International Law

Carson Holmgren, MJLST Staffer

The rapid rise of generative AI in recent years has boosted key players in the field to record-breaking valuations.[1] Yet many major firms lack the server capacity needed to operate their models at scale and rely heavily on third-party cloud service providers (“CSPs”) to meet their computing needs.[2] This dependency has fueled massive growth in the CSP industry, with annual global revenue predicted to exceed $400 billion in 2025[3] and $2 trillion by 2030.[4] Roughly 60% of the global CSP market is controlled by just three U.S. companies: Amazon Web Services, Microsoft Azure, and Google Cloud.[5] While critics warn of the risk in letting so few companies dominate the cloud,[6] Washington has largely stood idle and allowed these companies to consolidate their position in the market. However, recent legislation in the United Kingdom may offer U.S. policymakers a blueprint for creating a more completive CSP market.

The U.S. has adopted a passive stance towards CSP regulation for two primary reasons: a reactive antitrust framework and a political environment hostile to regulation.

U.S. antitrust law focuses not on a firm’s position in the market, but whether the firm’s conduct harms competition.[7] These harms may be difficult to quantify[8] but are primarily measured through effects on consumer welfare, such as higher prices or reduced output.[9] Absent the manifestation of such harms, private parties are unable to sue, and regulators are unable to take aggressive enforcement actions.[10] Private and public actors must essentially wait for anticompetitive behavior to occur and cause harm before they can act.

The current political context reinforces this inertia. The Trump administration has cultivated close ties with tech firms[11] and pushed a broader deregulatory agenda.[12] Aggressively regulating firms seen as friendly to the administration is, therefore, a low political priority.

The United Kingdom has presented an alternative to this passive approach. In 2024, the U.K. House of Commons passed the Digital Markets, Competition and Consumers Act (“DMCCA”), aimed at expanding the regulatory powers the Competition and Markets Authority (“CMA”) may exert over tech companies.[13] Unlike the current U.S. framework, the DMCCA allows the CMA to act before market harms manifest, establishing a more proactive regulatory regime.[14]

One of the new powers granted to CMAs is the ability to designate a company as having strategic market status (“SMS”). An SMS designation requires findings of entrenched market power, strategic significance to digital markets, and meeting turnover thresholds.[15] Firms having SMS are subject to additional oversight, including Conduct Requirements (“CRs”) and Pro-Competition Interventions (“PCIs”).[16]

CRs regulate how SMS-designated firms interact with consumers, competitors, and partners, imposing baselines of fair conduct.[17] CRs may prohibit discriminatory conditions against particular users, prevent self-preferencing, ensure interoperability with rival services, and mandate that sensitive user data not be used to secure an unfair advantage.[18]

PCIs can be implemented through Pro-Competition Orders (“PCOs”) and are structural sanctions aimed at attacking the source of a company’s entrenched market power. A PCO may require a company to make fundamental changes to their operations, and are distinguishable from CRs in that they are considered on-off interventions designed to reshape the competitive environment itself.[19]

How the CMA will apply its powers under the DMCCA remains uncertain, as the regime is still in its early phases. The first DMCCA investigation was launched in January 2025 and resulted in a proposal to issue Google’s search engine an SMS designation.[20] This proposal was positively received by academics and consumer advocacy groups,[21] but no CRs or PCIs have been introduced.

The U.K.’s CSP market is similarly concentrated, with Amazon Web Services and Microsoft Azure controlling roughly 80% of the market.[22] On July 31, 2025, the CMA published the findings of a pre-DMCCA report, noting that the two firms market dominance harms competition.[23] The report recommended SMS investigations, making it likely that both firms will eventually be designated as having SMS.

While no CRs or PCIs have been proposed, the report hints at what actions the CMA may take. It notes that less than 1% of users change CSPs annually, largely due to artificial barriers, including self-preferencing software compatibility requirements and high egress fees when migrating data to rival services.[24] The CMA could remove these barriers by issuing CRs requiring interoperability between competitors and limiting egress fees. Such actions would increase user mobility and spur greater competition between CSPs.

Microsoft’s licensing practices were also flagged as a concern. The CMA found that users had to adopt a full suite of Microsoft products to use Microsoft Azure effectively, making it difficult to change CSP once adopted. Microsoft can extract such concessions from customers due to its dominant operating system and software. To address this entrenched power, something more substantial than a CR is required. A one-off PCI, such as unbundling software or adjusting licensing terms for Microsoft Azure customers, could reduce Microsoft’s structural advantage and open up the market.

The DMCAA provides a model of what proactive antitrust regulation could look like in the United States. Critical components of the emerging AI economy are highly concentrated and ripe for anticompetitive exploitation. Adopting legislation mirroring the DMCCA would allow U.S. regulators to set clear rules for fair conduct upfront, rather than relying on long, resource-intensive efforts to break up monopolies after the damage is already done.

 

Notes

[1] Skye Jacobs, AI Boom Drives Record S&P 500 Valuations, but Goldman Sachs Warns of $1 Trillion Risk Ahead, TechSpot (Sept. 6, 2025), https://www.techspot.com/news/109358-ai-boom-drives-record-sp-valuations-but-goldman.html.

[2] Nihad A. Hassan, The Impact of Generative AI on Cloud Infrastructure Demand, Cybernews (May 3, 2025), https://cybernews.com/security/generative-ai-cloud-infrastructure.

[3] Felix Richter, The Big Three Stay Ahead in Ever-Growing Cloud Market, Statista (Aug. 21, 2025), https://www.statista.com/chart/18819/worldwide-market-share-of-leading-cloud-infrastructure-service-providers.

[4] Goldman Sachs, Cloud Revenues Poised to Reach $2 Trillion by 2030 Amid AI Rollout (Sept. 4, 2024) https://www.goldmansachs.com/insights/articles/cloud-revenues-poised-to-reach-2-trillion-by-2030-amid-ai-rollout.

[5] Id.

[6] Max Von Thun, Cloud Computing is Too Important to be Left to the Big Three, Financial Times (May 25, 2025), https://www.ft.com/content/5c930686-9119-402d-8b9b-4c3f6233164e.

[7] Daniel Francis, Antitrust Without Competition, 74 Duke L.J. 353, 355–56 (2024).

[8] Id.

[9] Lina M. Khan, The Amazon Anti-Trust Paradox, 126 Yale L.J. 710, 720 (2017).

[10] Herbet Hovenkamp, Antitrust Harm and Causation, 99 Wash. U. L.R. 787, 837–38 (2022).

[11] Ali Swenson, These Tech Billionaires Flanked Trump at Inauguration, AP News (Jan. 20, 2025) https://apnews.com/article/trump-inauguration-tech-billionaires-zuckerberg-musk-wealth-0896bfc3f50d941d62cebc3074267ecd.

[12] See The White House, President Trump, Tech Leaders Unite to Power American AI Dominance (Sept. 5, 2025) https://www.whitehouse.gov/articles/2025/09/president-trump-tech-leaders-unite-american-ai-dominance/; see also Alexandra Charbi & Juan Rojas, Merger Enforcement Policies of the Second Trump Administration: Early Developments and Priorities, ABA Antitrust L. Section (Aug. 29, 2025), https://www.americanbar.org/groups/antitrust_law/resources/newsletters/merger-enforcement-policies-second-trump-admin.

[13] See White & Case LLP, Navigating the New UK Antitrust Landscape (Jan. 8, 2025), https://www.whitecase.com/insight-alert/navigating-new-uk-antitrust-landscape.

[14] Id.

[15] Competition and Markets Authority, How the UK’s Digital Markets Competition Regime Works (last updated Jan. 23, 2025), https://www.gov.uk/guidance/how-the-uks-digital-markets-competition-regime-works?ucriteria-for-strategic-market-status.

[16] Id.

[17] Lisa Mildt, Nanret Senok & Luke Streatfield, Remedies Under the DMCCA: A New Digital Regulation Toolkit in the U.K., Hausfeld Competition Bull., (Mar. 28, 2025) https://www.hausfeld.com/what-we-think/competition-bulletin/remedies-under-the-dmcca-a-new-digital-regulation-toolkit-in-the-uk.

[18] Id.

[19] Id.

[20] Competition and Markets Authority, Strategic Market Status Investigation Into Google’s General Search Services (June 24, 2025) https://assets.publishing.service.gov.uk/media/68598b13eaa6f6419fade67b/Proposed_decision.pdf.

[21] Anush Ganesh, Google SMS Designation Responses – A Comprehensive Analysis, SCiDA (Sept. 11, 2025) https://scidaproject.com/2025/09/11/google-sms-designation-responses-a-comprehensive-analysis/.

[22] Competition and Markets Authority, supra note 22.

[23] Id.

[24] Id.

Moderating Social Media Content: A Comparative Analysis of European Union and United States Policy

September 24, 2024
Administrative Law, EU Law, Internet, Social Media

Jaxon Hill, MJLST Staffer

In the wake of the Capitol Hill uprising, former president Donald Trump had several of his social media accounts suspended.1 Twitter explained that their decision to suspend Trump’s account was “due to the risk of further incitement of violence.”2 Though this decision caught a lot of attention in the public eye, Trump was not the first figure in the political sphere to have his account suspended.3 In response to the social media platforms alleged censorship, some states, mainly Florida and Texas, attempted to pass anti-censorship laws which limit the ability for social media companies to moderate content.4 

Now, as litigation ensues for Trump and social media companies fighting the Texas and Florida legislation, the age-old question rears its ugly head: what is free speech?5 Do social media companies have a right to limit free speech? Social media companies are not bound by the First Amendment.6 Thus, barring valid legislation that says otherwise, they are allowed to restrict or moderate content on their platforms. But should they, and, if so, how? How does the answer to these questions differ for public officials on social media? To analyze these considerations, it is worthwhile to look beyond the borders of the United States. This analysis is not meant to presuppose that there is any wrongful conduct on the part of social media companies. Rather, this serves as an opportunity to examine an alternative option to social media content moderation that could provide more clarity to all interested parties. 

  In the European Union, social media companies are required to provide clear and specific information whenever they restrict the content on their platform.7 These statements are called “Statements of Reasons” (“SoRs”) and they must include some reference to whatever law the post violated.8 All SoRs  are  made publicly available to ensure transparency between the users and the organization.9 

An analysis of these SoRs yielded mixed results as to their efficacy but it opened up the door for potential improvements.10 Ultimately, the analysis showed inconsistencies among the various platforms in how or why they moderate content, but those inconsistencies can potentially open up an ability for legislators to clarify social media guidelines.11 

Applying this same principle domestically could allow for greater transparency between consumers, social media companies, and the government. By providing publicly available rationale behind any moderation, social media companies could continue to remove illegal content while not straddling the line of censorship. It is worth noting that there are likely negative financial implications for this policy, though. With states potentially implementing vastly different policies, social media companies may have to increase costs to ensure they are in compliance wherever they operate.12 Nevertheless, absorbing these costs up front may be preferable to “censorship” or “extremism, hatred, [or] misinformation and disinformation.”13 

In terms of the specific application to government officials, it may seem this alternative fails to offer any clarity to the current state of affairs. This assertion may have some merit as government officials have still been able to post harmful social media content in the EU without it being moderated.14 With that being said, politicians engaging with social media is a newer development—domestically and internationally—so more research needs to be conducted to conclude best practices. Regardless, increasing transparency should bar social media companies from making moderation choices unfounded in the law.

 

Notes

1 Bobby Allyn & Tamara Keith, Twitter Permanently Suspends Trump, Citing ‘Risk Of Further Incitement Of Violence’, Npr (Jan. 8, 2021), https://www.npr.org/2021/01/08/954760928/twitter-bans-president-trump-citing-risk-of-further-incitement-of-violence.

2 Id.

3 See Christian Shaffer, Deplatforming Censorship: How Texas Constitutionally Barred Social Media Platform Censorship, 55 Tex. Tech L. Rev. 893, 903-04 (2023) (giving an example of both conservative and liberal users that had their accounts suspended).

4 See Daveed Gartenstein-Ross et al., Anti-Censorship Legislation: A Flawed Attempt to Address a Legitimate Problem, Lawfare (July 27, 2022), https://www.lawfaremedia.org/article/anti-censorship-legislation-flawed-attempt-address-legitimate-problem (explaining the Texas and Florida legislation in-depth).

5 See e.g. Trump v. United States, 219 L.E.2d 991, 1034 (2024) (remanding the case to the lower courts); Moody v. NetChoice, LLC, 219 L.E.2d. 1075, 1104 (2024) (remanding the case to the lower courts).

6 Evelyn Mary Aswad, Taking Exception to Assessments of American Exceptionalism: Why the United States Isn’t Such an Outlier on Free Speech, 126 Dick. L. R. 69, 72 (2021).

7 Chiara Drolsbach & Nicolas Pröllochs, Content Moderation on Social Media in the EU: Insights From the DSA Transparency Database (2023), https://arxiv.org/html/2312.04431v1/#bib.bib56.

8  Id.

9 Id.

10 Id. This analysis showed that (1) content moderation varies across platforms in number, (2) content moderation is most often applied to videos and text, whereas images are moderated much less, (3) most rule-breaking content is decided via automated means (except X), (4) there is much variation among how often the platforms choose to moderate illegal content, and (5) the primary reasons for moderation include falling out of the scope of the platform’s services, illegal or harmful speech, and sexualized content. Misinformation was very rarely cited as the reason for moderation.

11 Id.

12 Perkins Coie LLP, More State Content Moderation Laws Coming to Social Media Platforms (November 17, 2022), https://perkinscoie.com/insights/update/more-state-content-moderation-laws-coming-social-media-platforms (recommending social media companies to hire counsel to ensure they are complying with various state laws). 

13 See e.g. Shaffer, supra note 3 (detailing the harms of censorship); Gartenstein-Ross, supra note 4 (outlining the potential harms of restrictive content moderation).

14 Goujard et al., Europe’s Far Right Uses TikTok to Win Youth Vote, Politico (Mar. 17, 2024), https://www.politico.eu/article/tiktok-far-right-european-parliament-politics-europe/ (“Without evidence, [Polish far-right politician, Patryk Jaki] insinuated the person who carried out the attack was a migrant”).

 

Perhaps Big Tech Regulation Belongs on Congress’s for You Page

April 13, 2023
Cyber Security, Data, EU Law, Internet, Privacy, Public Safety, Social Media

Kira Le, MJLST Staffer

On Thursday, March 23, 2023, TikTok CEO Shou Zi Chew testified before a Congressional panel for five hours in order to convince Congress that the social media platform should not be banned in the United States. The hearing came one week after reports surfaced that the Committee on Foreign Investment was threatening a ban unless TikTok’s parent company ByteDance sells its share of the company.[1] Lawmakers on both sides of the aisle, as well as FBI officials, are allegedly concerned with the possibility of the Chinese government manipulating users’ experience on the platform or threatening the security of the data of its more than 150 million users in the United States.[2] Despite Chew’s testimony that TikTok plans to contract with U.S. tech giant Oracle to store U.S. data on U.S. servers on U.S. soil, preventing Chinese interference on the platform and recommending content to U.S. users through Oracle infrastructure, lawmakers were not convinced, and not a single one offered support for TikTok.[3]

In terms of what’s to come for TikTok’s future in the United States, Senator Marco Rubio updated his website on Monday, March 27, 2023 with information on “when TikTok will be banned,” claiming his proposed ANTI-SOCIAL CCP Act is the only bipartisan, bicameral legislation that would actually prevent TikTok from operating in the United States.[4] In order to cut off the platform’s access to critical functions needed to remain online, the proposed statute would require the president to use the International Emergency Economic Powers Act to block and prohibit all transactions with TikTok, ByteDance, and any subsidiary or successor within 30 days.[5] Senator Rubio explains that the proposed legislation “requires the president to block and prohibit transactions with social media companies owned or otherwise controlled by countries or entities of concern.”[6] Reuters reports that The White House supports the Senate bill known as the RESTRICT Act.[7] However, former President Trump made an almost identical attempt to ban the app in 2020.[8]TikTok was successful in quashing the effort, and would almost certainly challenge any future attempts.[9] Further, according to Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, “To justify a TikTok ban, the government would have to demonstrate that privacy and security concerns can’t be addressed in narrower ways. The government hasn’t demonstrated this, and we doubt it could. Restricting access to a speech platform that is used by millions of Americans every day would set a dangerous precedent for regulating our digital public sphere more broadly.”[10]

Despite what Congress may want the public to think, it certainly has other options for protecting Americans and their data from Big Tech companies like TikTok. For example, nothing is stopping U.S. lawmakers from following in the footsteps of the European Parliament, which passed the Digital Markets Act just last year.[11] Although the main purpose of the Act is to limit anticompetitive conduct by large technology companies, it includes several provisions on protecting the personal data of users of defined “gatekeeper” firms. Under the Act, a gatekeeper is a company that provides services such as online search engines; online social networking services; video-sharing platform services; number-independent interpersonal communications services; operating systems; web browsers; and online advertising services that are gateways for business to reach end users.[12] The Digital Markets Act forbids these gatekeepers from processing the personal data of end users for the purpose of providing online advertisement services, combining or cross-using their personal data, or signing users into other services in order to combine their personal data without their explicit consent.[13]

The penalties associated with violations of the Act give it some serious teeth. For noncompliance, the European Commission may impose a fine of up to 10% of the offending gatekeeper’s total worldwide turnover in the preceding year in the first instance, and up to 20% if the gatekeeper has committed the same or a similar infringement laid out in specific articles at some point in the eight preceding years.[14] For any company, not limited to gatekeepers, the Commission may impose a fine of up to 1% of total worldwide turnover in the preceding year for failing to provide the Commission with information as required by various articles in the Act. Finally, in order to compel any company to comply with specific decisions of the Commission and other articles in the regulation, the Commission may impose period penalty payments of up to 5% of the average daily worldwide turnover in the preceding year, per day.[15]

If U.S. lawmakers who have backed bipartisan legislation giving President Biden a path to ban TikTok are truly concerned about preventing the spread of misinformation on the platform, who truly believe, as Representative Gus Bilirakis claims to, that it is “literally leading to death” and that “[w]e must save our children from big tech companies” who allow harmful content to be viewed and spread without regulation, then perhaps Congress should simply: regulate it.[16] After the grueling congressional hearing, the Chinese foreign ministry stated in a regular news briefing that it has never asked companies “to collect or provide data from abroad to the Chinese government in a way that violated local laws…”[17]During his testimony, Chew also argued that TikTok is no different than other social media giants, and has even sought to put stronger safeguards in place as compared to its competitors.[18] Granted, some lawmakers have expressed support for comprehensive data privacy legislation that would apply to all tech companies.[19] Perhaps it would be more fruitful for U.S. lawmakers to focus on doing so.

Notes

[1] Ben Kochman, Skeptical Congress Grills TikTok CEO Over Security Concerns, LAW360 (Mar. 23, 2023), https://plus.lexis.com/newsstand#/law360/article/1588929?crid=56f64def-fbff-4ba3-9db0-cbb3898308ce.

[2] Id.

[3] Id.; David Shepardson & Rami Ayyub, TikTok Congressional Hearing: CEO Shou Zi Chew Grilled by US Lawmakers, REUTERS (Mar. 24, 2023), https://www.reuters.com/technology/tiktok-ceo-face-tough-questions-support-us-ban-grows-2023-03-23/.

[4] FAQ: When Will TikTok Be Banned?, MARCO RUBIO US SENATOR FOR FLORIDA (Mar. 27, 2023), https://www.rubio.senate.gov/public/index.cfm/press-releases?ContentRecord_id=C5313B3F-8173-4DC8-B1D9-9566F3E2595C.

[5] Id.

[6] Id.

[7] Factbox: Why a Broad US TikTok Ban is Unlikely to Take Effect Soon, REUTERS (Mar. 23, 2023), https://www.reuters.com/technology/why-broad-us-tiktok-ban-is-unlikely-take-effect-soon-2023-03-23/.

[8] Id.

[9] Id.

[10] Id.

[11] Council Regulation (EU) 2022/1925 on Contestable and Fair Markets in the Digital Sector, 2022 O.J. L 265/1 [hereinafter Digital Markets Act].

[12] Id., Art. 3, 2022 O.J. L 265/28, 30.

[13] Id. art. 5, at 33.

[14] Id. art. 30, at 51, 52.

[15] Id. art. 17, at 44.

[16] Ben Kochman, Skeptical Congress Grills TikTok CEO Over Security Concerns, LAW360 (Mar. 23, 2023), https://plus.lexis.com/newsstand#/law360/article/1588929?crid=56f64def-fbff-4ba3-9db0-cbb3898308ce.

[17] David Shepardson & Rami Ayyub, TikTok Congressional Hearing: CEO Shou Zi Chew Grilled by US Lawmakers, REUTERS (Mar. 24, 2023), https://www.reuters.com/technology/tiktok-ceo-face-tough-questions-support-us-ban-grows-2023-03-23/.

[18] Daniel Flatley, Five Key Moments From TikTok CEO’s Combative Hearing in Congress, BLOOMBERG (Mar. 23, 2023), https://www.bloomberg.com/news/articles/2023-03-23/five-key-moments-from-tiktok-ceo-s-combative-hearing-in-congress#xj4y7vzkg.

[19] Ben Kochman, Skeptical Congress Grills TikTok CEO Over Security Concerns, LAW360 (Mar. 23, 2023), https://plus.lexis.com/newsstand#/law360/article/1588929?crid=56f64def-fbff-4ba3-9db0-cbb3898308ce.

Call of Regulation: How Microsoft and Regulators Are Battling for the Future of the Gaming Industry

February 21, 2023
Administrative Law, Antitrust, EU Law, Telecommunication, Video Games

Caroline Moriarty, MJLST Staffer

In January of 2022 Microsoft announced its proposed acquisition of Activision Blizzard, a video game company, promising to “bring the joy and community of gaming to everyone, across every device.” However, regulators in the United States, the EU, and the United Kingdom have recently indicated that they may block this acquisition due to its antitrust implications. In this post I’ll discuss the proposed acquisition, its antitrust concerns, recent actions from regulators, and prospects for the deal’s success.

Background

Microsoft, along with making the Windows platform, Microsoft Office suite, Surface computers, cloud computing software, and of new relevance, Bing, is a major player in the video game space. Microsoft owns Xbox, which along with Nintendo and Sony (PlayStation) is one of the three most popular gaming consoles. One of the main ways these consoles distinguish themselves from their competitors is by categorizing certain games as “exclusives,” where certain games can only be played on a single console. For example, Spiderman can only be played on PlayStation, the Mario games are exclusive to Nintendo, and Halo can only be played on Xbox. Other games, like Grand Theft Auto, Fortnite, and FIFA are offered on multiple platforms, allowing consumers to play the game on whatever console they already own.

Activision Blizzard is a video game holding company, which means the company owns games developed by game development studios. They then make decisions about marketing, creative direction, and console availability for individual games. Some of their most popular games include World of Warcraft, Candy Crush, Overwatch, and one of the most successful game franchises ever, Call of Duty. Readers outside of the gaming space may recognize Activision Blizzard’s name from recent news stories about its toxic workplace culture.

In January 2022, Microsoft announced its intention to purchase Activision Blizzard for $68.7 billion dollars, which would be the largest acquisition in the company’s history. The company stated that its goals were to expand into mobile gaming, as well as make more titles available, especially through Xbox Game Pass, a streaming service for games. After the announcement, critics pointed out two main issues. First, if Microsoft owned Activision Blizzard, it would be able to make the company’s titles exclusive to Xbox. This is especially problematic in relation to the Call of Duty franchise. Not only does the Call of Duty franchise include the top three most popular games of 2022, but it’s estimated that 400 million people play at least one of the games, 42% of whom play on Playstation. Second, if Microsoft owned Activision Blizzard, it could also make its titles exclusive to Xbox Game Pass, which would change the structure of the relatively new cloud streaming market.

The Regulators

Microsoft’s proposed acquisition has drawn scrutiny from the FTC, the European Commission, and the UK Competition and Markets Authority. In what the New York Times has dubbed “a global alignment on antitrust,” the three regulators have pursued a connected strategy. First, the European Commission announced an investigation of the deal in November, signaling that the deal would take time to close. Then, a month later, the FTC sued in its own administrative court, which is more favorable to antitrust claims. In February 2023, the Competition and Markets Authority released provisional findings on the effect of the acquisition on UK markets, writing that the merger may be expected to result in a substantial lessening of competition. Finally, the EU commission also completed its investigation, concluding that the possibility of Microsoft making Activision Blizzard titles exclusives “could reduce competition in the markets for the distribution of console and PC video games, leading to higher prices, lower quality and less innovation for console game distributors, which may, in turn, be passed on to consumers.” Together, the agencies are indicating a new era in antitrust – one that is much tougher on deals than in the recent past.

Specifically, the FTC called out Microsoft on its past acquisitions in its complaint. When Microsoft acquired Bethesda (another video game company, known for games like The Elder Scrolls: Skyrim) in 2021, the company told the European Commission that they would keep titles available on other consoles. After the deal cleared, Microsoft announced that many Bethesda titles, including highly anticipated games like Starfield and Redfall, would be Microsoft exclusives. The FTC used this in its complaint to show that any promises by Microsoft to keep games like Call of Duty available to all consumers could be broken at any time. Microsoft has disputed this characterization, arguing that the company made decisions to make titles exclusive on a “case-by-case basis,” which was in line with what it told the European Commission.

For the current deal, Microsoft has agreed to make Call of Duty available on the Nintendo Switch, and it claims to have made an offer to Sony, guaranteeing the franchise would remain available on PlayStation for ten years. This type of guarantee is known as conduct remedy, which preserves competition through requirements that the merged firm commits to take certain business actions or refrain from certain business conduct going forward. In contrast, structural remedies usually require a company to divest certain assets by selling parts of the business. One example of conduct remedies was in the Live Nation – Ticketmaster merger. The companies agreed not to retaliate against concert venue customers that switched to a different service nor tie sales of ticketing services to concerts it promoted. However, as the recent Taylor Swift ticketing dilemma proves, conduct remedies may not be effective in eliminating anticompetitive behavior.

Conclusion

Microsoft faces an uphill battle with its proposed acquisition. Despite its claims that Xbox does not exercise outsize influence in the gaming industry, the sheer size and potential effects of this acquisition make Microsoft’s claims much weaker. Further, the company faces stricter scrutiny from new regulators in the United States. Assistant Attorney General Jonathan Kanter, who leads the DOJ’s antitrust division, has already indicated that he prefers structural remedies to conduct ones, and Lina Khan, FTC commissioner, is well known for her opposition to big tech companies. If Microsoft wants this deal to succeed, it may have to provide more convincing evidence that it will act differently than its anticompetitive conduct in the past.

The Apathetic Divide: Surrogacy and the Anglo-American Courtroom

February 20, 2023
Ethics, EU Law, Health Law, Healthcare, Reproductive Health

Kelso Horne, MJLST Staffer

The State of New York defines Gestational Surrogacy as “a process where one person, who did not provide the egg used in conception, carries a fetus through pregnancy and gives birth to a baby for another person or couple.” The process of surrogacy can be fraught with legal, technical, and moral issues, particularly when the surrogacy is paid for via contract with the surrogate, also called Compensated Gestational Surrogacy (CGS). Until 2020, this kind of contractual paid surrogacy was illegal in the state of New York. That year, it was legalized, and the regulatory regime normalized by the Child-Parent Security Act.  In contrast, the state of Louisiana has one of the harshest gestational surrogacy regimes in the world, outright banning CGS, and requiring both sets of gametes to come from a couple married residing in the state of Louisiana. But these competing regulatory regimes are not replicated across the nation. To the contrary, most states have not passed any laws legalizing or banning CGS or other fertility practices, like the sale of gametes. With sparse case law and frequent legal limbo, the question of “is CGS legal for me?” can be a difficult question for many Americans.

Across the Atlantic, the question used to be an easy one to answer. In 1985 the UK Parliament Enacted the Surrogacy Arrangements Act, which made it an offense to “initiate or take part in any negotiations with the view of making a surrogacy arrangement”, along with some related activities, like compiling information to assist in the creation of surrogacy arrangements. Critically, however, the Act did not criminalize the act of looking to hire a surrogate, or looking to become one, only being a middleman, or publishing advertisements on behalf of those looking to obtain the services of a surrogate. The Human Fertilisation and Embryology Act 1990 defined the mother of a child under UK law as “[t]he woman who is carrying or has carried a child… and no other woman”. In 2001, the Lords Appeal in Ordinary, which acted as the UK’s highest court until 2009, heard the appeal in Briody v. St Helens and Knowsley Area Health Authority. The question before the Lords was one of damages. A woman, rendered infertile as a result of medical negligence, sought £78,267 in order to obtain the services of a surrogate in California, which had legalized CGS in 1993 in the landmark case Johnson v. Calvert. The Lady Justice Hale, speaking for the court, foreclosed the use of CGS in California or elsewhere, as the proposal was “contrary to the public policy of the country”. While she did not entirely dismiss the idea of providing damages to pay for surrogacy procedures, she said it would be permitted only in the case of a voluntary, unpaid surrogate.

Few appellate court judges get to issue an opinion on the same facts twice in their career. In 2020, in one of her final cases prior to retiring, the Lady Justice Hale, now sitting on the UK Supreme Court, which by then had replaced the Lords Appeal in Ordinary, did just that.  In Whittington Hospital NHS Trust (Appellant) v XX, the court determined that a woman who had been rendered infertile as a result of medical negligence could claim damages, including the costs to pay a United States based surrogate to carry her children. CGS, while still entirely illegal in the UK, could now nevertheless provide the basis for damages in a UK court. The Court did note some factual differences between Whittington Hospital and Briody, notably, that the likelihood that a surrogacy arrangement would result in a child was higher in the former. However, the court’s main argument for its opposite ruling was a change in cultural attitude to surrogacy and its role in society, stating “[t]he use of assisted reproduction techniques is now widespread and socially acceptable.”

While admitting that surrogacy was now widely accepted in UK society, the dissent, authored by The Lord Justice Carnwath, nevertheless disagreed with the Court. It argued that the criminal law of the UK remained clearly averse to commercial surrogacy, and that by awarding damages for CGS in California the court misaligned the UK’s civil and criminal law. Thus, the CGS regimes of the UK and the U.S. are now bound together. UK citizens may seek surrogacy arrangements and have them compensated by the UK government through the UK’s National Health Service, but they must use an American “womb”. A financial arrangement which the UK itself deems too unethical to allow inside its own borders is nevertheless legalized and compensated when occurring in other countries. The deeply strange situation is mirrored in the opaque CGS law in the United States itself.

A quick glance at any 50-state review of laws, compiled either by supporters or opponents to commercial surrogacy, paint a similar picture. They show strange ad hoc mixes of case law which often cover ancillary issues or are at least 30 years old. Some scholars have started to publicly discuss the possible ethical pitfalls of “procreative tourism”, but without clear legal rules governing what arrangements are and are not allowed, it becomes difficult to discuss possible solutions. The dangers of this shadow regime were thrown into stark relief by the war in Ukraine, which prior to the Russian invasion was a major source of surrogate mothers. Mothers were paid on average $15,000 per child, which is considerable in a country where, prior to the invasion, the GDP per capita was less than $5,000. The United States needs to determine if it wishes to become a “destination” country for procreative tourism, as the result in Whittington would seem to suggest it is, and whether it wishes to allow its own citizens the opportunity to travel abroad to engage in CGS.

This blog has touched on only a small fraction of the issues which are faced when determining the ideal regulatory regime for surrogacy. However, a lack of discussion, and a failure to acknowledge possible risks leaves us ignorant of what the problems may be, let alone the route to potential solutions. States have largely failed to address the issue since the first CGS baby was born in their borders, usually in the late 1980’s and early 1990’s. It’s time for a serious examination of CGS regulation as it exists, as well as a meaningful discussion about safeguarding the health and wellbeing of those involved in such a transaction. The UK has now done the same, passing the buck without a serious response to the issues surrounding CGS. Regardless of one’s opinion on the results of the Louisiana and New York regulations, potential participants in a surrogacy arraignment in those two states know the boundaries. That should be the case nationwide.

Billionaire Space Race: How Blue Origin’s Attempt to Stall SpaceX’s Lunar Program May Lead to China Beating the USA to the Moon

November 25, 2021
Competition, International Law, Space Law

Henry Killen, MJLST Staffer

The days of mega billionaires like Jeff Bezos, Elon Musk, and Richard Branson being content with their private islands and mega yachts are over. The latest mega rich trend is owning a space company. Blue Origin, SpaceX, and Virgin Galactic are all leaders in space exploration and are all owned by billionaires. The space race is on! The privatization of space travel has led to innovative developments in the industry. Both Blue Origin and SpaceX now have reusable rockets that cut the cost of a launch by at least 50 percent compared to a nonreusable rocket. Virgin Galactic has developed its own unique technology, which uses an aircraft to fly their space vehicle to an altitude of 50,000 feet before releasing it.

In 2017, then President Trump signed an order directing NASA to partner with the private sector with the goal of putting astronauts on the moon by 2024. The project, known as Artemis, will return astronauts to the moon for the first time in over 50 years. Perhaps the most important part of going to the moon, is the lunar landing vehicle. Both Blue Origin and SpaceX have demonstrated that their rockets can safely and effectively travel into space, but neither has ever successfully landed a vehicle on the moon. Developing lunar landing technology is certainly expensive, so NASA solicited proposals from private companies who want to lead the lunar landing project.  In 2020, NASA awarded almost a billion dollars combined to SpaceX, Blue Origin, and Dynetics (long considered a dark horse) to begin researching and developing a lunar landing vehicle. After the initial funding, NASA was expected to select two of the three companies, so they would have a backup if one company failed, and then fully fund the completion of each company’s lunar landing program. In April 2021, NASA selected only SpaceX to build the lunar landing system because of a lack of funding. Blue Origin immediately filed a protest with the US Government Accountability Office, but its protest was promptly denied. Then, Blue Origin sued NASA in federal court in an attempt to remedy the flaws in the acquisition process found in NASA’s Human Landing System. Blue Origin’s main issue is that NASA was expected all along to select two companies, and that they would have revised their proposal had they known only one would be selected. Released court filings show that SpaceX’s final proposal was $2.9 billion, while Blue Origin’s was $5.9 billion. On November 4th, a federal judge rejected Blue Origin’s argument because the company was not able to show how the process was unfair. Though the judge’s opinion is yet to be publicly released, we do know that the case was dismissed under rules 12(b)(1) lack of subject matter jurisdiction and 12(b)(6) failure to state a claim upon which relief can be granted. It appears Blue Origin has accepted defeat because Jeff Bezos took to twitter writing in part, “we respect the court’s judgment, and wish full success for NASA and SpaceX on the contract.”

Perhaps the biggest loss stemming from this lawsuit is time. SpaceX and NASA’s work was put on hold during this litigation. Ultimately, they were unable to communicate about the Artemis program for nearly seven months, and have now delayed humans returning to moon until at least 2025. As America’s billionaires litigated and delayed this monumental project, America’s biggest rival on the global stage has made its own strides for putting humans back on the moon. China is now rapidly developing its own lunar program. China publicized timeline for landing its astronauts on the moon is slated for 2028, but China has a history of world-class innovation. Most recently, China has successfully tested the most advanced missiles in history. In 2020, China used a drone to raise a flag on the moon, becoming the only nation besides America to have a flag standing on the moon. General Mark Milley, who is the Chairman of the Joint Chiefs, said China’s new weapons are close to a ‘sputnik moment.’ The sputnik moment Milley is referring to is when the Soviet’s put the first satellite in orbit during the Cold War, shocking the USA and giving the Soviet’s an early lead in the space race. America ended up beating Russia to the moon after the sputnik moment, but the 21st century’s moon race is still up for grabs. It remains to be seen if America’s billionaire-run space companies can compete with a country like China. One thing is certain, SpaceX and Blue Origin’s resources are better off innovating than litigating.

Impact on IP: What Effect Will the US-China “Phase 1” Trade Deal Have

February 28, 2020
Intellectual Property, International Law, Trade

Ian Sannes, MJLST Staffer

After 18 months of intense negotiations, the US and China finally reached an agreement with many provisions covering a wide variety of topics. Although the agreement has a focus on tariffs, it also addresses intellectual property (IP) rights both in China and the US. This deal is referred to as “Phase 1” and went into effect last week. In part, the deal is meant to increase and facilitate the ability of US businesses to operate in China.

From the US point of view, this deal strengthens IP rights of US patents in China. In fact, this strengthening of IP rights is arguably the most significant part of the entire deal. However, China also benefits from this because, as the previous deputy director of the National Economic Council Clete Willems said, “better intellectual property protection means more investment in China.” This makes sense, if US products are protected in China, then US companies will want to invest heavily to develop those products in a country that has more purchasing power than any other country in the world.

So, what changes to IP protections have been made?

The cornerstones of the IP protections implemented in the deal are wide-ranging. They include increasing trade secret protections, increasing pharmaceutical IP protections, extending patent terms, combating counterfeits, reforming trademark provisions, and improving judicial enforcement in IP cases. Some of these changes are discussed in more detail below.

The deal also put a stop to “forced technology transfers” that require US firms to share technology with Chinese companies to compete in their market. However, some are concerned that since this provision requires a wronged company to file a complaint with the Office of the US Trade Representative that may depend on other Chinese government approvals, this provision may be hard to enforce in practice.

Many US companies believe certain judicial proceedings in China are a pretext to force them to disclose valuable trade secrets. Phase 1 prohibits any proceeding from forcing such unauthorized disclosure of information. The deal also shifts the burden to the defendant in a trade secret case to prove their innocence after the plaintiff survives dismissal of the case. The deal brings the Chinese definition of trade secret more in line with the definition used in the US by expanding it to include “electronic intrusion and breach of confidentiality.”

The deal also increases patent terms for pharmaceuticals “to compensate for unreasonable delays” made in granting the pharmaceutical patents. This makes it easier for US drugs that took many years to make it through the Chinese patent system to recoup the development costs and to turn a profit. The deal allows for up to five years of extension to patent terms. Furthermore, the deal includes provisions for “effective and expeditious” actions against “counterfeit medicines and biologics, including active pharmaceutical ingredients, bulk chemicals, and biological substances.”

Finally, the deal also increases the severity of punishments for stealing or infringing IP rights. Besides improvements to detect and stop infringing counterfeits, audits may also be used to show that the Chinese government itself only uses licensed software.

These are just some of the many provisions included in Phase 1. The deal helps to make the US and Chinese IP systems “further aligned” and this can create efficiencies in standardization, improve clarity, and promote cooperation. This deal strengthens both the US and China economies and promotes trade and investment in each country while protecting IP. Furthermore, a Phase 2 trade deal is likely in the future. Hopefully, this new deal will include more IP protections for both countries and strengthen the economic bond between the countries even more.

Keeping Pace With Crimes in Space

September 13, 2019
Criminal Law, International Law, Space Law

Katherin Nixon, MJLST Staffer

At the end of August, something peculiar happened. Something extraterrestrial. No, NASA did not discover aliens on Mars (although that would have been peculiar and extraterrestrial too). Instead, the first crime was allegedly committed in Space—by a human being. Anne McClain was on a six-month mission aboard the International Space Station (“ISS”) when she accessed her estranged spouse’s bank account using NASA’s computer network. McClain has since been accused of identity theft and improper access to private financial records. Regardless of her innocence or guilt, this raises two important issues for law-oriented earthlings: (1) what laws govern Space; and (2) who has jurisdiction?

Among the laws that govern Space, two are especially noteworthy in this case. According to Article VIII of the Outer Space Treaty of 1967, “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” This would seem to suggest the United States maintains jurisdiction in this case. But, it is important to remember the crime was committed aboard the ISS. On January 29, 1998, fifteen governments came together to sign the International Space Station Intergovernmental Agreement (“IGA”). As the name indicates, this agreement governs all things ISS. Article 22 of the IGA states, “Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.” Since McClain is a United States citizen—and the alleged crime was committed against another United States citizen—the United States has jurisdiction over this case.

However, what if the crime was committed against say—a Japanese citizen or a Russian citizen? This is the entry point for a black hole. Consider this hypothetical offered by Michelle Hanlon, professor of air and space law at the University of Mississippi: “Astronaut A from Country A stole a watch from Astronaut B from Country B, and it happened in a part of the ISS that belonged to Country C.” (Doesn’t this feel like the Space version of Civil Procedure?) In that situation, the IGA would require the different countries to come together in order to discuss their prosecutorial interests. Assuming the three countries could come to an agreement on whose jurisdiction governs, there would not be much of an issue.

Traveling further down the black hole, what happens when Space tourism takes off? With Space tourism, the discussion would involve private citizens and private companies instead of government employees and government entities. As noted by Loren Grush and The Verge, “[I]f someone from the U[nited] S[tates] gets hurt on a private Japanese space hotel, along with other passengers from Spain and Singapore, it’s unclear exactly how to proceed.” The Outer Space Treaty would likely be the start. Yet, countries with companies interested in Space tourism should come together to discuss a new agreement. The new agreement could be modeled after the IGA, but should include an added level of specificity.

As it turns out, keeping pace with crimes in space will be no easy task. Luckily, this will not be a pressing issue anytime in the near future. For now, it is an interesting thing to ponder as our presence in Space grows. The McClain case—despite its relative simplicity—serves as a preview for the more complicated cases that will eventually come.

Practical Results of Enforcing the GDPR

March 8, 2019
EU Law, International Law, Privacy

Sooji Lee, MJLST Staffer

After the enforcement of the European Union’s(“EU”) General Data Protection Regulation (“GDPR”), Facebook was sued by one of its shareholders, Fern Helms, because its share price fell more than “20 percent” in July 27, 2018. This fall in stock price occurred because the investors were afraid of the GDPR’s potential negative impact on the company. This case surprised many people around the world and showed us how GDPR is sensational regulation that could result in lawsuits involving tremendous amounts of money. This post will articulate what has occurred after enforcement of this gigantic world-wide impacting regulation.

Under GDPR, regulated entities (data controllers and data processors) must obtain prior “consent” from their users when they request customers’ personal data. Each member country must establish Data Protection Authority (“DPA”) to comply with the GDPR. This regulation has a broad applicable range, from EU corporations to non-EU corporations that deal with EU citizens’ personal data. Therefore, after the announcement of this regulation, many United States based global technology corporations which conduct some of their business in European countries, such as Google and Facebook, commenced processes to comply with the GDPR. For example, Facebook launched its own website which explains its effort to comply with GDPR.

Surprisingly, however, despite the large-scale preparation, Google and Facebook were sued for breach of the GDPR. According to a report authored by IAPP, thousands of claims were filed within one month the GDPR’s enforcement date, May 25, 2018. This fact implies that it is difficult to abide by GDPR for current internet-based service companies. Additionally, some companies that are not big enough to prepare to comply with the GDPR, such as the Chicago Tribune and the LA Times, temporarily blocked EU users from its website and some decided to terminate its service in the EU.

One interesting fact is that no one has been fined under GDPR yet. A spokesperson for the United Kingdom’s Information Commissioner’s Office commented “we are dealing with the first GDPR cases but it’s too early to speculate about fines or processing bans at this stage.” Experts expect that calculating fines and processing bans could take another six months. These experts foresee that once a decision is rendered, it could set a standard for future cases which may be difficult to change.

The GDPR, a new world-wide impacting regulation, just started its journey toward proper consumer data protection. It seems many of the issues involved with the GDPR are yet to be settled. For now, no expert can make an accurate prediction. Some side-effects seem inevitable. So, it is time to assess the results of the regulation, and keep trying to make careful amendments, such as expanding or restricting the scope of its applicable entities, to adjust for arising problems.

The International Whaling Commission Sans Japan: What It Means for the Whales

February 10, 2019
Animal Law, Economics, International Law

Allie Jo Mitchell, MJLST Staffer

On December 25, 2018 Japan announced that it would withdraw from the International Convention for the Regulation of Whaling (“ICRW”) and leave the international whaling commission (“IWC”) in order to resume commercial whaling.  A statement by Japan’s Chief Cabinet Secretary explained that the decision to withdraw was based on the failure of the IWC to take into account all stated objectives of the ICRW, including the “orderly development of the whaling industry” and the creation of sustainable commercial whaling. Citing the cultural and economic significance commercial fishing has played in Japan, the country rested its decision on its determination that commercial whaling could resume without negatively impacting cetacean resources.

International condemnation over Japan’s decision was swift, with Greenpeace Japan questioning the health of Japan’s whaling stock and calling the decision “out of step with the international community, let alone the protection needed to safeguard the future of our oceans and these majestic creatures.” The UK’s environment secretary tweeted that “[t]he UK is strongly opposed to commercial whaling and will continue to fight for the protection and welfare of these majestic mammals” and a diplomat of Norway called the decision to break away from the global agreement “dangerous.” On January 14, 2019 the IWC issued a statement that it had received notification from Japan that it would withdraw from the ICRW in 2019.  Recognizing the role Japan had played, the chair of the IWC specifically mentioned the controversy surrounding commercial whaling within its member group, offering hope that the IWC would continue to work on a variety of issues in which there was common ground.  

Now that Japan has left the IWC, it will begin the commercial hunting of whales in July of 2019 within its territorial seas and exclusive economic zone that exists within 200 miles of Japan’s coasts. Japan will also remain an observer of the IWC and “continue to contribute to the science-based sustainable management of resources.” Importantly, without it’s permit to kill whales for research under the ICW, Japan will now cease the taking of whales in the high sea, including the Antarctic Ocean and the Southern Hemisphere, as required by international law. Japan had previously killed whales in the Antarctic Ocean under the auspicious guise of research. In fact, in 2014 the International Court of Justice found that Japan’s whale research program was violating the IWC’s moratorium on commercial whaling because Japan was using lethal methods where none were required. Despite this holding, in 2016 a Japanese “research” expedition in the Antarctic killed 333 whales (207 of which were pregnant) with the meat from the whales sold on the commercial market.

But what does all this really mean for the whales of the world? There are some positives that may come from Japan withdrawing from the IWC, but these could easily be outweighed by the negatives. Because Japan will have to limit its commercial whaling to 200 miles within Japanese coasts, whales outside of this region, particularly whales in the Antarctic and southern hemisphere, will be in luck. However, whales within Japan’s territorial sea and economic zone, where studies suggest stock levels are low, won’t fare so well.

Furthermore, Japan may not only shift its catch to Japanese waters but could actually increase the number of whales it kills each year with little to no oversight from the international community. This could severely impact whale species, both endangered and non-threatened, and deplete whale stocks within Japan’s territorial sea. As Astrid Fuchs, program lead of the Whale and Dolphin Conservation explained, “[t]he oversight that the IWC was having over Japan’s whaling will now be lost. We won’t know how many whales they are catching, we won’t know how they will report it. It might spell doom for some populations.”

Perhaps the greater danger lies in what Japan’s withdrawal from the IWC may signal to other countries. As Japan stated in its public announcement, “Japan hopes that more countries will share the same position to promote sustainable use of aquatic living resources based on scientific evidence, which will thereby be handed down to future generations.” Fuchs is worried about the precedent this might set, particularly in countries with an interest in commercial whaling and whale meat including South Korea and other Pacific and Caribbean island nation states.

On the bright side, decreasing interest and consumption of whale meat may play a bigger role in protecting whales from commercial hunting than Japan’s involvement with the IWC. Demand for whale meat is the lowest in Japan since WWII, with the average consumption of whale just one ounce per person a year. A recent poll also showed that only 11% of Japanese people strongly support the whaling industry. If the economics of commercial whaling are not as strong as imagined, commercial whaling my peter out on its own in Japan.

The world will likely have to wait and see what the real effect of Japan’s withdrawal from the IWC is on the health and vitality of whale species and whale stocks. In the meantime, there are a myriad of other human caused dangers to whales from bycatch, plastic pollution, noise pollution, oil & chemical pollution, marine traffic, and climate change. Humans have a history of driving whale species to extinction, wreaking havoc on whaling stocks, and threatening the very survival of whales for their personal use and consumption. Despite Japan’s withdrawal from the IWC, it will be necessary for all nations to look beyond commercial whaling and address the continual threats humans pose to whales and other marine life.

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