Does AI need an antitrust exemption so it doesn't kill everyone????

The biggest story in tech right now is the spiraling debate about AI safety and regulation. The CEOs of all these companies have issued various calls to slow down development and develop regulation, including asking for antitrust exemptions so they can all coordinate on safety issues. So to make sense of it all, I called Jonathan Kanter, the former antitrust chief for the U. S. Department of Justice in the Biden Administration. There's a lot going on, and we really got into the weeds of how all this regulation might work, and how it might interact with antitrust law, competition policy, and our relationship with China. Read the full interview transcript on The Verge. Links: Is Big Tech’s AI slowdown a safety pact or a cartel? | The Verge Inside the suddenly explosive world of AI safety | The Verge Execs and politicians on slowing down AI development | The Verge Microsoft AI CEO: AI threats are real, Anthropic makes it worse | The Verge Lina Khan: We don’t need new laws to prosecute AI CEOs | Gizmodo Subscribe to The Verge to access the ad-free version of Decoder! Credits: Decoder is a production of The Verge and part of the Vox Media Podcast Network. Decoder’s producers are Greg Ott, Kate Cox, and Nick Statt. This episode was edited by Ursa Wright. Our editorial director is Kevin McShane. The Decoder music is by Breakmaster Cylinder. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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• 0:37Speaker 01

  Hello and welcome to Decoder. I'm Neelai Patel, editor in chief of The Verge. And Decoder is my show about big ideas and other problems. The biggest story in tech right now is the spiraling debate about AI safety and regulation. Researchers at the big AI labs, including Anthropic and Google DeepMind, have recently quit in noisy ways, saying the models those companies are developing pose real threats and safety isn't being taken seriously across the industry. Other researchers have agreed, saying the chances of AI killing us all is greater than 10%. And the CEOs of all of these companies have issued various calls to slow down development and develop regulation, including asking for antitrust exemptions so they can all coordinate on safety issues. That is a lot of ideas. And I've been especially curious about the ask for an antitrust exemption, which has led to accusations that these companies are seeking regulatory

• 1:22Speaker 01

  capture, attempting to form a cartel, and even somehow find a way out from investor pressure ahead of their IPOs. So to make sense of it all, I called Jonathan Kanter, the former antitrust chief of the United States Department of Justice under the Biden administration. These days, he is both a professor of law at Wash U and a professor of technology policy at Carnegie Mellon. During his time as the DOJ's antitrust chief, Kanter brought huge cases against Google, Apple, and Ticketmaster. And along with Lina Khan, led what amounted to a full reboot of American antitrust policy. He won those cases against Google and Ticketmaster. And that case against Apple is still live in the Trump administration, surprising many. That antitrust reboot has also led to some surprising alliances in the AI safety debate. Vowed libertarian and former Trump AI czar David Sacks

• 2:06Speaker 01

  has been approvingly retweeting Lina Khan, saying there's no need for an antitrust exemption. Again, this is a lot of ideas. And you're going to hear Jonathan and I really get into the weeds of how all this regulation might work, how it might interact with antitrust law, competition policy, and our relationship with China. Okay, Jonathan Kanter, former DOJ antitrust chief on AI safety and regulation. Here we go. Jonathan Kanter, the former head of the DOJ antitrust division in the Biden administration and a current professor of law at Wash U and professor of technology policy at Carnegie Mellon. Welcome back to Decoder.

• 2:38Speaker 02

  Always a pleasure to be back.

• 2:40Speaker 01

  This is great. You're a private citizen now. You don't have to give me the politician answers.

• 2:43Speaker 02

  I can say whatever I want. I feel so free.

• 2:46Speaker 01

  I'm very excited about this.

• 2:48Speaker 02

  I plan to as well.

• 2:49Speaker 01

  I have a million questions about the state of AI regulation in America right now. There is a swirl of ideas about how we should or should not regulate these companies. There is the Trump administration, whose posture seems to be no, which is fascinating. You rarely see the federal government just decline to participate in the way that the Trump administration appears to be declining to participate. And then there's an incredible backbone of antitrust concern floating throughout all of this. Are these companies trying to form a cartel? Are they aware that maybe their IPOs aren't going to go the way they want to, so they're seeking regulatory capture

• 3:34Speaker 01

  in some way that is good or bad? Are they trying to foreclose cheaper competition from open weight Chinese models? Give me your sense of just the state of things right now. And then I want to dive into the specifics with you.

• 3:45Speaker 02

  So the state of the world right now is it's like we've invented cars and trucks, but we have no lines on the road, no traffic lights, and no stop signs, and no speed limits. We've invented this incredibly powerful technology that's transforming how we live our lives, how we conduct business, how we socialize, how we seek and generate and consume information. And we need some basic rules of the road. And I think about it in two fronts. What are the things that companies should be doing? And what are things that government should be doing? And I think there are responsibilities on both ends. And so happy to dive into both.

• 4:20Speaker 01

  Well, let's just start with the very notion that asking for regulation necessarily forms a cartel. All the big frontier AI companies, OpenAI, Anthropic, Google, DeepMind, even Elon Musk, these are companies that do not necessarily like each other. These are people that do not necessarily like each other. And they are saying in concert that they should slow down. The phrase that Dario Amadei from Anthropic is using is to pace the frontier. My read of this is that they simply do not trust each other, that they are in a prisoner's dilemma, and they need an outside force, most likely the government, to enforce some kind of policy framework on them that they have to agree with. Is that a fair read of just the basics here?

• 4:58Speaker 02

  Kind of. So let me give you my interpretation from the most generous to the most cynical, neither of which, TLDR, should result in any sort of antitrust exemption. So the most generous is they're afraid of the pace of innovation. And the lack of regulation means they don't see any lines on the road. They don't know where to drive. And they're worried about driving off the road or hitting somebody else. And so they're begging for the government to step in and do something. That's probably there's a monicum of truth to that. I think they certainly, people, I believe they believe it could destroy humanity. I'm not sure that that doomsday scenario is accurate.

• 5:42Speaker 02

  But I believe they believe that. That's the more generous. The more cynical is they're spending so much money, they're hemorrhaging cash, and they can't keep this up. But if they pull back, it's going to affect their valuation as part of the IPO. So they would like somebody to give them all permission to stop spending so much money and slow the pace of innovation so that they don't have to compete as hard so they can figure out their economics before they go public.

• 6:07Speaker 01

  Does an agreement among all the top players in a field like this automatically form a cartel? This is the, on that cynical side of the interpretation, there's a lot of you just want regulatory capture, you want to make a cartel, you want to foreclose competition.

• 6:21Speaker 02

  That is a risk, certainly, of that kind of arrangement. So let's walk through what's necessary and what's not. Let me just be very clear. These companies do not need to coordinate in order to deliver safe and secure products to society. Think about this. Imagine like Boeing and Airbus. Boeing, you know, a few years ago, doors falling off the plane. It wasn't Airbus's fault, and they didn't need to slow down innovation with Airbus in order to prevent those doors from flying off the plane. They needed to figure out how to build planes that were safer. If you build cars that explode while you're driving, it's not the other car company's fault. And you don't need to come together and figure out how to solve those problems.

• 7:06Speaker 02

  You need to figure out what went wrong in your manufacturing process. If you create products that create AI agents that break into somebody else's and hack somebody else's technology, it is no different in my mind than having an employee go do that. You have a responsibility to build safe and secure products. And companies should be held liable when they're agents, whether those agents are digital and binary, or whether those agents are AI, or whether those agents are humans. If they start doing bad things, the company that employs them can and should be held responsible. So those are the basic rules of the road. There are areas where there is legitimate collaboration in the context of safety and security.

• 7:48Speaker 02

  So for example, having a clearinghouse to properly share threats, you know, malicious bots or other things that you can create a repository so that everyone can build safer products. Those are the kinds of collaboration that happen in other industries. And you don't need an antitrust exemption because the antitrust laws don't prohibit that kind of work. If two companies say we're competing too hard and we need to slow down, yes, that could implicate the antitrust laws. But that's not what we should be doing here. We should be innovating, but companies should have the responsibility to build safe and secure products. And the government should be responsible for putting lines on the road that say, if you don't build a safe and secure product,

• 8:32Speaker 02

  here's what the consequences are. If you don't build a safe and secure product, here's what my liability might look like. If you don't build a safe and secure product, then perhaps there should be robot jail for your agents, and it should be taken off the market.

• 8:48Speaker 01

  All right, I want to dig into robot jail specifically and the amount of pressure we're putting on what feels like product liability law. There's something there that I want to talk about more specifically. But, you know, my wife's a lawyer. I told her I was talking to you this morning. And I tried to explain the fault lines here. And she just shot me that look and said, this is just a nightmare law school hypo, right? Like, what you're describing is, does tort law create a regulatory framework for these companies? And somewhere in there is, well, is if my agent goes and hacks you, is my directive, is that Anthropic's fault, right? Are we going to create some kind of pass through liability? Does that happen already?

• 9:30Speaker 01

  Or not, like, do we need another law or clarification law? What's your view on this? Like, if I direct my Meta muse agent to go attack you, and it does it, is that Meta's fault?

• 9:42Speaker 02

  Both and, right? And so companies employ people and they build technology. And when those people and those technologies do things that are problematic, including stealing or breaking into someone else's property on behalf of their employer, there's liability, and that's can be products liability, but it could be more than products liability. It's you're just people doing bad things or companies creating technology that's doing bad things. And the products liability framework actually did work, most recently in the case against Meta for Facebook and Instagram and child safety and security and mental health.

• 10:20Speaker 01

  Wait, hold on, I want to hold. That is really fascinating to me. Like, this is a thing I'm like really interested in talking about because it took a decade for it to work.

• 10:29Speaker 02

  That's the problem. This is where the government needs to step in, right? And so companies have an obligation today to build safe and secure products. And the pace of innovation isn't an excuse not to go do that. So let's be very clear about that. At the same time, we've invented cars and trucks and trains, and we have no crossings. We have no lights. We have no lines on the road. And Congress is completely incapable of pretty much doing anything. And while these tech companies are out there saying that they want regulation, they're actively lobbying against it and have been for a very long time. And so the whole thing is a complete mess. And it's a symptom of our system, which is a complete mess.

• 11:13Speaker 02

  And frankly, if the political scientist in me would trace that back to things like gerrymandering and Citizens United, where our process has gotten out of control. And Congress, which should be doing its basic job of putting, you know, basic safety standards and responsibilities in place, hasn't done that. That having been said, the lack of action by Congress is not an excuse to deliver dangerous products. If you believe your product is going to destroy humanity, then don't build it. If you believe your product is going to go break into someone else's stuff, then then go back to the drawing board and figure out how you build it in a way that's safer. And guess what? That's innovation. These are innovation problems, not just regulatory problems.

• 11:58Speaker 02

  We need to do a better job incentivizing our companies to build safer and secure products. And when they do that, those products will perform better, and we will see better innovation. Right now, innovation is asymmetric because it's done without the proper regard for safety and security, just like we saw in social media. And as a result, now we have products that are good at really, really good and really effective at letting people communicate, but really bad when it comes to childhood addiction and mental health. And so perhaps we should learn our lesson and encourage people to build safer, more secure products from the get go at the outset of this technology.

• 12:33Speaker 01

  Well, let me make the comparison to social media regulation just a little more tightly.

• 12:39Speaker 02

  Okay.

• 12:39Speaker 01

  We just had the big Meta case that is a products liability case, right? Your products were designed in a way that caused harm to teenagers. Meta settled the case because I think Mark would prefer to build AI than care about.

• 12:51Speaker 02

  They lost, but they did lose one to a jury, right?

• 12:53Speaker 01

  They did lose one to a jury, and this case wasn't going well. But fundamentally, they settled, they gave up. And there's a view that if they had fought and appealed, they would have won on some First Amendment grounds, right, that the product liability case maybe wasn't as strong as we all thought it was. Another reason I'm saying that is Meta gave in to the regulator, right? And their posture at the end was a settlement. They gave in and they accepted some regulation. It took a long time for the product liability version of this to get a company like Meta to concede some regulation, to concede some controls. If we're saying today, OpenAI, you are probably liable for what ChatGPT does. Anthropic, you are probably liable for what Claude does.

• 13:36Speaker 01

  Isn't this the moment to actually tighten the screw and pass the regulation that says you are definitely liable?

• 13:41Speaker 02

  Yes, this is the job of Congress, which is to clarify the law. And but I think the environment today is noticeably different than the environment was 15, 20 years ago. 15, 20 years ago, we had Section 230, which actually granted massive amounts of immunity to online companies, which actually made it harder to sue them and gave them more flexibility to innovate without regard for consequences. We had a, and this is not partisan because it can go back to the Obama administration, the very hands-off, oh, my goodness, our economy depends on these wonderful companies from Silicon Valley.

• 14:22Speaker 02

  Let's let them do whatever they want and essentially allow them to set up camp at the White House and in Congress and tell us how to write or not write our rules. I think that the results of that have eroded or destroyed any trust the public has in these technology companies. And I think one of the reasons we're having this conversation a lot earlier in the process now is because people are like, well, you know, fool me once, shame on you. Fool me twice, shame on me. And so I think the good news is I think there's greater public awareness and appreciation for the problems and a desire to do something meaningful. The problem is we have a system in Congress because of things like Citizens United,

• 15:05Speaker 02

  because of things like gerrymandering, that have a government that is not responsive to the needs of the people. And that is the impasse that we're all confronting. So we're going to have to, in the meantime, rely on things like products liability or others to help get us some semblance of structure. But, you know, the other piece is states. States have actually done a better job than the federal government. And you can rewind back six months or a year. We had people in Congress without any imposing any affirmative rules, saying we should put a 10-year moratorium on the ability of states to impose their own rules and regulations at a time when Congress had no affirmative solutions of its own. So hopefully, that moment has passed.

• 15:49Speaker 02

  And I think the public is saying, and the companies are saying, let's sit down and figure out something sensible.

• 15:54Speaker 01

  The polling data is clear that the American public does not trust these companies, does not like these products and is afraid of the consequences to come, even though those consequences are hazy in the long term. They seem not so hazy in the short term.

• 16:07Speaker 02

  Right. And some of this is, listen, the companies have done a terrible job at messaging. They have effectively said, we're going to, we're going to destroy all your jobs and potentially destroy humanity, but we're going to IPO for a massive valuation. And we're going to set up camp in your local communities with data centers, which, by the way, don't employ people and drive up the cost of power, but it's okay, China.

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• 17:45Speaker 01

  I want to come to China in one second because that feels like another very important piece of the puzzle. But you mentioned a cast of characters here. You mentioned Obama. There's a political realignment inside this debate that I find confounding. David Sacks, who was Trump's AI czar, is retweeting your former counterpart at the FTC, Lina Khan, saying the existing antitrust laws are fine. You don't need an exemption. The existing laws, like you're saying, will cover you. They will make it so you can coordinate on security things and you will be liable for what you're doing. And if you want to stop, just stop. That is absolutely shocking kind of political alignment to me. Where do you think that's coming from?

• 18:23Speaker 02

  So it's actually, it's a realignment of the realignment. You know, going back to Trump I, we started seeing the kind of ends of the horseshoe starting to meet where folks, you know, left, right, and center were all concerned about the power of big tech. And when people like Lena and I came into office, we had a mandate and a lot of public support, frankly, to be aggressive in enforcing the law against big tech. And then, you know, came the inevitable backlash. And the Trump administration in the second incarnation was a lot more friendly with those companies rather than the first, and then it became cozy again. And now I think we're seeing that dam break once more.

• 19:04Speaker 01

  But if I was to describe to you a day in which David Sacks is approvingly retweeting Lina Khan, while Bloomberg columnist Joe Weisenthal is saying, all these people are just saying Lina Khan was right about the power of cartels. And hours later, Bernie Sanders and Steve Bannon are sharing a stage in DC, calling for a dead stop of AI development. That doesn't look like anything that we've seen before.

• 19:31Speaker 02

  No, no. Although, again, you know, I will say this. When I went up before Congress, I had support from Senator Mike Lee and Chuck Grassley and Josh Hawley. And Matt Gaetz asked me if I was tired of winning at one of my oversight hearings. And then I had a bunch of, you know, Democrats, many of whom supported me, some of whom were very adherent to the big tech companies who would criticize me. These signs of this stuff being all over the map have been around for a while. The fight between little tech and big tech, and this is the part that I think a lot of folks don't see from the outside, but the biggest antagonists of the big tech companies are the other tech companies. I did a speech

• 20:14Speaker 02

  before the Chamber of Commerce when I was in office, and I brought a whole box of like fake mustache and glasses. And I said, I'm here to say thank you, because all of your members are coming in and helping us figure out how to bring our cases. And I know you don't like the reputational hit of that. So here are some disguises you can put them on next time you come in. But the truth of the matter is, most people hate the monopolist unless you're the monopolist. And companies want the opportunity to compete on the merits and win or lose on the success, on the merits of their own innovations and their own business acumen. So I think a lot of this stuff actually has wide range appeal. The politics of it

• 20:55Speaker 02

  get kind of weird and funky, like you're describing. But I think if you look at the data center issue, for example, I mean, it's not left or right. It's all of the above. And part of this is, to me, a sensation that we're actually more in a healthier place, as unhealthy as the whole thing is, than we were during the internet and social media revolution, where even criticizing those companies or saying we needed something was seen as like a very fringe position. The truth of the matter is, people want some lines on the road. They don't want to stop innovation. They don't want to stop progress. They're not saying we have to burn the whole thing down, although Bernie kind of wants

• 21:39Speaker 02

  a complete stoppage. I don't think that is realistic. We don't want to stop innovation. We just want to have innovation result in safe and secure products that make us better as a society. And I think that requires some correction in terms of the course, as opposed to the path we're on right now.

• 21:58Speaker 01

  I do think one notable difference between now and what happened with social media companies, is that the people who ran Twitter and Facebook and YouTube did not run around saying they might kill everyone. Like, they ran around with the banner of the righteous, right? They were going to bring democracy to the Middle East with the power of social media. And these companies obviously think that they're going to do something great, right? They're going to cure all diseases, they're going to make life better, we're going to live in luxury communism, or whatever that thing is. But they're also very clear that unrestrained competition might lead to really enormous negative outcomes. And one of the things they're constantly talking about is China, right? They can all coordinate the United States, but the United States needs to win, because there's the specter

• 22:42Speaker 01

  that Chinese models might overtake them. And then the Chinese government will be in control of AGI, or whatever thing that is scary on the horizon. What do you make of that? Is that just a convenient boogeyman? Is that real? Is that something competition law can address?

• 22:57Speaker 02

  It's largely a convenient boogeyman. So we've been dealing with these kinds of issues. I was thinking back to the breakup of AT&T. At the time, AT&T made the argument to the Reagan administration that it should not be broken up, because in order to win the Cold War, we needed a national telecommunications network that was nice and strong. And the Reagan administration rejected that argument. The fact of the matter is, the way to compete against China is to lean into what makes us great as a country. What makes us the greatest country is we care about our people. Also, just let's be very clear, China is not doing what we're doing. China limits the way in which kids can interact with

• 23:41Speaker 02

  technology. China censors what people see in its borders. China actually manages, centrally controls, a lot of its corporations through state-owned enterprises and influence enterprises. So this idea that the only way to compete against China is to let us deliver unsafe products is kind of ridiculous. The way we win, whatever that means, against China, is to make sure that we are delivering great innovations and products that benefit society, that we are protecting people from harmful uses of those products, and then we're allowing a free market to function within those constraints. That's how we beat China. And as I was saying

• 24:23Speaker 02

  before, with social media, the lack of rules, the lack of accountability resulted in a lack of innovation in how to build these products at the outset in a way that's more safe, and that's more secure and better for, let's say, mental health of people. It is not a bad thing, and it's not bad for innovation, to require people to deliver safe and secure products. It is the responsibility of the country to make sure that our companies are innovating within the constraints of a free, within the boundaries of a free market, but doing so in a way that is beneficial.

• 24:57Speaker 01

  Let me try to split the difference between your former role as antitrust chief and your current role as law professor. Give people a framework to understand how competition law domestically should interact with foreign policy, right? We are in some sort of national competition with China across a number of dimensions. There is a fear that if Chinese tech companies flood America with cheap-to-run, open-weight models, that all this collapses and the United States economy collapses. There's a lot there, right, between how we might deal with China as a foreign adversary, or at least a geopolitical rival, and our competition policy here. What's the best framework to understand that?

• 25:38Speaker 02

  So the best framework is, we should promote dynamic, aggressive competition inside the borders of the United States, right? And so we want companies, including foreign companies, usually, but certainly domestic companies, to compete hard, because our system is a market-based system. It's one where people innovate, and the opportunity to be successful encourages people to try new things, invest money in capital, and make great products. All that is good. We don't want to, the idea that we need monopolies at home in order to compete abroad is antithetical to our way of life, right? We were founded

• 26:17Speaker 02

  in rejecting the, I mean, the Tea Party was founded as a revolution against the British monopoly over the necessities of life. I mean, this goes back to the founding of our country. Our freedom is, in part, in economic freedom, and we need to make sure we promote that. So, you know, saying that we should tolerate monopolies domestically in order to compete abroad is wrong. There are legitimate questions, some of which this administration is raising, about how do we deal with foreign nations that, you know, try to dump cheap products below cost, and things like that. I was reading with my law students the other

• 26:58Speaker 02

  day, a case from the 80s, where the allegations were that Japan, companies in Japan were cartilizing television sets in Japan to sell them at a higher price, so they can cross-subsidize below-cost pricing in the United States in order to drive out the domestic US manufacturers. And that was the height of the Chicago School Libertarian Movement. And the Supreme Court actually used some just, you know, kind of cockamamie version of economics to suggest that wasn't an antitrust violation, and sort of set the stage for what happened next. There are legitimate questions about what we need to do to make sure that, you know, there is fair competition and a fair playing field, that we're protecting

• 27:40Speaker 02

  the ability of people domestically to compete successfully. But the way to deal with that question is not to allow monopolization of our markets domestically in order to compete abroad. That's just an excuse. And that is leaning away from, rather than into, what makes us really special as a nation.

• 28:39Speaker 01

  So I can already hear what our most skeptical members of the audience are saying. They are screaming, probably in their cars, that it's already a monopoly, right? That Nvidia has circular financed all of these companies. They are already coordinated, that product liability theories of harm will just fall on their face because there's no way OpenAI, whatever, to hugging face because Nvidia just bought hugging face and Nvidia is the biggest investor in OpenAI. Do you need to go break that up? Do you need to go?

• 29:10Speaker 02

  Well, somebody should be looking at these issues, right? Like, this is, this is what we were starting to do when we were in office, as we were saying, okay, there are some lines on the road now, and you can't go buy any company, you can't go invest in any company you want. We want competition to mean competition, and that might be a little frustrating on some ends, but so long as you're within those boundaries, go for it. Go compete as hard as you can. This administration has sort of taken the position that we're going to allow a small number of companies to reach a level of dominance, or oligopoly, or monopoly, so that we can beat China, whatever beating China means. And that's the piece that I don't quite understand. What does beating China mean?

• 29:52Speaker 02

  I get the issue of if, you know, China has these advanced bots that are, that are violating and infiltrating our, our companies and our government's servers and the like, well, fine, that's a national security issue, right? And we should deal with that. And that's a geopolitical issue, we should deal with that. That's an international relations issue, we should deal with that. But we don't, the way to deal with that is not having monopolies domestically, especially when those monopolies are not adherent to, they're adherent to shareholders rather than the best interests of the public.

• 30:29Speaker 01

  This is a big debate across the United States government right now, right? The, the Trump administration has taken direct investment in a bunch of American companies. They've talked about setting up a sovereign wealth fund based in crypto. There's more coordination between the government and private industry in a Republican administration than you would ever expect in history.

• 30:49Speaker 02

  Owning the means of production. What does that sound like to you?

• 30:52Speaker 01

  It is, it is, and then they call everyone else communist, which is great.

• 30:55Speaker 02

  Yes.

• 30:55Speaker 01

  Again, the realignment is, is wild stuff that's happening out there.

• 30:58Speaker 02

  Compare owning a grocery store, a couple of grocery stores in New York, to actually investing in some of the most significant technological infrastructure of our nation.

• 31:08Speaker 01

  But it, well, the grocery stores are a huge threat to the American way of life. There's a piece of the puzzle here where the Trump administration's approach is national champions. They're just not saying it maybe as explicitly as you are. Do you think that approach can be unwound? Do you think competition law is compatible with that approach?

• 31:31Speaker 02

  It is harder to unwind it than it is to build it the right way from the get-go. And so, that is exactly, you know, you hit the nail on the head, national champions. Like, China is a country of national champions. The United States is not a country of national champions. The United States is a company of anyone could grow up to be a champion, right? That's the American dream. Our, our promise, our way of life, is based on a fundamentally different idea and ideal. And the more we diverge and deviate from that, the worse off we are. So I do think that is a bad policy, and it will be harder to undo the

• 32:13Speaker 02

  more it calcifies. And I hope, you know, we, and again, this is not anti-business, just to be very clear, or anti-market. I'm a capitalist, a card-carrying capitalist, I'm proud to say I am. And what, the world that I want is one where everyone can be investing, everyone can be building a company, and that there are rules around the edges in terms of monopolizing markets. But within that, everyone should compete as hard as they can, and build, and grow, and do all sorts of amazing things. I think that is a better version of our country, one that got us to the place of economic power and dominance globally. And I think

• 32:53Speaker 02

  we are more vulnerable when we have central points of failure, and, and we are less free when we have a small number of companies that are telling us how to live our lives. So I am, I'm for the thousand flowers blooming inside the borders of the United States.

• 33:10Speaker 01

  It is just remarkable to me, you know, we're weeks away from the midterm elections. That is something a traditional conservative from the 90s would have said about the power of the free markets. What do you make of this moment? If you had to describe the policy positions of the median Republican and the median Democrat headed into the midterms around this issue, are they compatible? Are they at war? Is it a total scramble?

• 33:33Speaker 02

  It's a total scramble. I'll take one issue. I don't think what I articulated is, is a conservative from the 90s. I think the conservatives of the 90s were, you know, antitrust and, and competition policy and all of these, you know, these ideas that were kind of very central to the development and growth of our country from, you know, the 40s to the, to the 70s, should be thrown away, and we should let industry consolidate. And we did. We saw industry consolidate. I mean, and, and I think that is part of the reason why we have a lot of the problems that we have today, including the K-shaped economy and, and the sense of opportunity not being widely available. In terms of

• 34:14Speaker 02

  your question, it is a scramble. I think the plates are shifting. And I think where everything ends up is still unclear. We are in, we are living through the transformation of our politics and our ideals, and Republicans and Democrats and conservatives and progressives and all these other different flavors will not mean in 15 years what they meant 15 years ago. And I think it's a little bit unclear how that's all going to play out, but we are living, we're literally living through that transformation right now, which is, which is kind of remarkable. It's an interesting thing to observe as somebody who likes to study markets and technology and policy. And, and it's not, again, not all of this

• 34:57Speaker 02

  is bad. I think we do need some realignment. We need to take a inward look at the way we're governing our society, the way we're encouraging our markets to structure, and think about whether there are things we should do differently. But, but what we are living through is kind of, there are two things that are happening. One is, from the 80s to probably the 2010s, we're kind of living through the Reagan era of neoliberal politics and policy. And I think that there, the left and right have both rebelled against that. And so I think that, that nail on the coffin is being hammered in as we speak. The other thing that's happening that I think is even more fascinating is, we have been living

• 35:42Speaker 02

  in the New Deal era for nearly 100 years. That era is over. And what comes next is a jump ball, but it's over in terms of the role of government, the role of policy, the role of our, you know, international relations. All of that is being rebuilt or stripped down to the studs, and, including our government agencies themselves, our regulatory structure, right? The, the way this AI issue would have been handled 50 years ago is we would have created, you know, Department for AI Safety or something, or AI, and we would have, they would have promulgated rules, and they would have had folks looking at it. And that might not have been the right approach, but that's what would have been the approach. That,

• 36:27Speaker 02

  the Supreme Court essentially threw that, thrown that out the window. That's, it's no longer what we have. Now we have an executive branch that basically decides on its whims what it wants to do on a daily basis. So the whole thing is just completely a mess.

• 36:41Speaker 01

  It's funny, you say essentially, Trump's approach to this is you don't need a regulator, you need a great president, and that's me. And I, I saw that, and I was like, but what you would do is regulate them. So you should just hire some people to do it. You should just delegate.

• 36:54Speaker 02

  Well, this is, this is the irony. A good friend of mine, Dave Lawrence, wrote a piece in New York Times a few weeks ago, kind of saying just this, this, which is, the Supreme Court has said, oh, we don't want agencies and regulators promulgating rules and answering major questions, which are supposed to be the purview of Congress, but instead they've essentially allowed the, the executive branch to do it without any process, without any input, and essentially with, with very little structure, which does lead to regulatory capture, which does lead to inadequate or inequitable outcomes. And I think that's what we're confronting right now. And so, the, again, I think this is

• 37:36Speaker 02

  all consistent with what I was saying a few moments ago, which is kind of ripping down to the studs the New Deal era. You know, the infrastructure, the government infrastructure that we relied on to figure out how to deal with all these things has essentially been destroyed. And so now we don't really have the resources or the, the structure in place to deal with these kinds of existential problems. Instead, we have Congress, and Congress is largely ineffective because of things like Citizens United and gerrymandering that has essentially made all politics national and all politics tribal.

• 38:11Speaker 01

  Let me ask you two questions to, to wrap this up. You mentioned some eras. You, along with Lina Khan, brought forth a new era in antitrust. Some people called it hipster antitrust. The academics called it neo Brandeisian.

• 38:23Speaker 02

  Just look at my hairline. I'm far from a hipster. You're much cooler than I am.

• 38:29Speaker 01

  But the idea that we would bring back aggressive antitrust enforcement on theories of the law that weren't simply related to consumer prices going up or down, that was new. That was something you brought forth. You brought a lot of cases against Apple.

• 38:41Speaker 02

  Successfully. And we won our cases. Our cases on the law won. We beat Google in court twice. We survived a motion to dismiss on Apple. We put together a Ticketmaster case that even when the Trump administration tried to settle it, actually won in front of a jury in court. The stuff we did worked. And we brought cases on algorithmic pricing and healthcare. We fought for the public because the public wanted someone to fight for them.

• 39:08Speaker 01

  The settlements in the Google cases did not achieve the results you're offering.

• 39:11Speaker 02

  Not the settlements, the remedies, which I did not preside over. I presided over the victories. We handed the baton over to the next administration. The remedies were admittedly disappointing. Could we have achieved a different outcome? I don't know. I would have liked the opportunity to try, but we didn't. So that's disappointing. But it doesn't change the fact that we changed the game. We changed the approach. And the state of antitrust law and the state of competition policy was a heck of a lot better when we left it than when we started.

• 39:43Speaker 01

  Do you think that that era persists? There are some people, especially in tech policy, who would say this was all a failure. We should call this what it was. It was a failure. It did not result in structural change, and we should move on from it.

• 39:53Speaker 02

  Not at all. It's not a failure. In fact, I mean, there are things. Did we finish the job? No. There's a lot more to go. And it kind of relates to the challenge that we were talking about earlier, which is it's harder to address something after it calcifies. We were coming in after these markets had hardened, trying to figure out how to create competition. And I've always been fond of saying that what you really want to do is you want to protect the next inflection point. And so, especially in technology and platforms, what comes next is likely to be highly disruptive. And competition has its greatest promise at that moment. And that's when incumbents tend to be most aggressive in trying to prevent

• 40:37Speaker 02

  upstarts and others from competing. And so, I do think the conversation we're having around competition, this conversation today, the fact that folks on left and right are saying we are concerned about, already concerned about monopolies or oligopolies, is a sign that these issues are more easily discussed today than they were six or seven years ago.

• 40:59Speaker 01

  It's funny, the last time you were on, I believe we were talking about the case you brought against Apple. And you made the same point, right? Right before everything changes, that's when the monopolist gets the most aggressive. And with Apple, it's the App Store. With Google, it's tying all of its products together in various different ways. Here you are again, and we're talking about what would be the challengers. We're talking about the AI companies that might disrupt Apple's interface. Johnny Ive has gone to go make hardware devices at OpenAI, and Apple's suing them. There's a lot going on here. But what strikes me is the conversation we're having today is about the challengers, not the monopolists.

• 41:35Speaker 02

  Well, the challengers of yesterday are often the monopolists of today. And so, what you want is, I'm not against the challengers. Let me be very clear. I think this is why I'm against the antitrust exemption. I want them to keep pushing hard. I want them to keep competing. But I also would love to see a thriving domestic open source or open weights models to compete. I think we want to promote more competition, not less. And so, that's really what we should be focused on, is making sure that the lessons we learned from the last go around don't translate to this one. So, competition is not about weakening

• 42:20Speaker 02

  the large player. It's about making sure that the smaller players have an opportunity to compete as well.

• 42:25Speaker 01

  Do you think it's surprising that Trump administration hasn't settled the Apple case? That is, the one that's ongoing, that just every day, I'm like, it's weird that they can't buy their way out of that one.

• 42:33Speaker 02

  It is surprising. I mean, the guy showed up with gold bars to the White House. If that doesn't do it, what will?

• 42:39Speaker 01

  Do you think it's just because they still think there's something there, or is it just leverage in the background?

• 42:44Speaker 02

  I have no idea. I have no idea. It's a strong case. It's a good case.

• 42:47Speaker 01

  You're not a politician anymore. You can just say it. Say what you think.

• 42:49Speaker 02

  No, I told you the guy showed up with gold bars. I think it goes to this, which is, I'm in favor that for every monopolist, you have dozens of other companies, if not hundreds, that are upset with the monopolist. And it no longer becomes, unless we fully have embraced national champions. There are a lot of companies that are frustrated with, as we put in our complaint, with the tactics of Apple to control that market and exploit that market. And so, there are countervailing forces on the other side, if I had to guess.

• 43:29Speaker 01

  All right. I want to wrap this up with a big sweep. We've talked about a lot of issues. There's just a lot of directions at which you can come at, how should we regulate AI in this moment? If you had to make your list of prescriptions, if you were the policymaker, how would you organize them? And what would you say?

• 43:45Speaker 02

  I would start with clarity around consequences for bad things. So if you build dangerous products, if your door flies off your plane while it's in the air, if your AI breaks into someone else's company, you should be held responsible. And you have an obligation to build products that don't do that. I think that is a very good, logical place to start. And it is an extension of the products liability style framework. That is a good place. I think we need to enumerate, and Congress should step in and say, okay, here are the things we value as a society. We value mental health. We value competition. We value authenticity of information. We value intellectual property and copyright of

• 44:28Speaker 02

  content owners. These are the kinds of things we value. And we need to make sure that those values are embedded in the lines on the road and the stop signs and the traffic lights, so that everyone has clarity at the outset what's okay and what's not.

• 44:43Speaker 01

  Maybe we'll get a Congress that can do that in the next term. We'll see.

• 44:46Speaker 02

  I hope so. I hope so.

• 44:48Speaker 01

  We're going to have to have you back soon, Professor Cantor. Thank you so much for being on Decoder.

• 44:52Speaker 02

  My pleasure.

• 44:55Speaker 01

  I'd like to thank Jonathan Kanter for taking the time to join me on Decoder, and thank you for listening. I hope you enjoyed it. Just let us know what you thought about this episode, or really, anything else at all. Drop us a line. You can email us at [email protected]. We really do read all the emails. Or you can hit up directly on Threads or Blue Sky. We're also on YouTube. You can watch full episodes at DecoderPod. We also have a TikTok and an Instagram. They're also at DecoderPod, and they're a lot of fun. If you like Decoder, please share it with your friends and subscribe wherever you get your podcasts. Decoder is part of the The Verge and part of the Vox Media Podcast Network. The show's producers are Greg Ott, Kate Cox, and Nick Statt. This episode was edited by Ursa Wright. Our editorial director is Kevin McShane. The Decoder music is by Breakmaster Cylinder. We'll see you next time.