Senator pushes DOJ to launch criminal antitrust probe of Amazon

Amazon is already facing a bevy of antitrust probes, both in the United States and overseas. Just about every state, federal, and international regulator with any kind of competition regulation power is investigating the company over some aspect of its business. Sen. Josh Hawley (R-Mo.), however, wants to add one more to the pile and is calling on the Justice Department to launch a criminal probe.

"Recent reports suggest that Amazon has engaged in predatory and exclusionary data practices to build and maintain a monopoly," Hawley wrote today in a letter (PDF) to Attorney General William Barr. "These practices are alarming for America's small businesses under ordinary circumstances. But at a time when most small retail businesses must rely on Amazon because of coronavirus-related shutdowns, predatory data practices threaten these businesses' very existence."

The recent report to which Hawley refers is last week's Wall Street Journal exposé, which found that Amazon employees accessed third-party merchants' data as a matter of habit in order to launch their own in-house products and undercut the marketplace vendors who rely on Amazon as a platform.

All retailers, of course, have access to sales data from their platforms or stores. Walmart or Target knows exactly how many name-brand cleaning products or over-the-counter pharmaceuticals sell in a given hour from a given location (or online), as well as how many of its private-label generic equivalents sell in the same time frame, and make decisions based on that data. But Amazon, as Hawley pointed out, has access to a much richer trove of information than a standard big-box store does. "[Amazon] can track how long a person's attention lingers on a product, which features attract a person's attention, which images a person views and for how long, and what reviews a person reads," Hawley wrote. "Amazon's capacity for data collection is like a brick-and-mortar retailer attaching a camera to every customer's forehead."

Antitrust law isn't just about whether a company has a monopoly in its market sector. More often, antitrust cases are about anticompetitive behavior within a sector. In short: being the biggest is fine, legally speaking, and being the victor in marketplace combat is fine, but cheating or in some other way playing unfairly against your would-be competitors in order to attain and maintain your dominance is not.

The House of Representatives, the Department of Justice, the Federal Trade Commission, and massive, nationwide coalitions of states are all in the midst of investigations into potentially anticompetitive behavior by Google, Amazon, Facebook, and Apple. So, too, are the agencies' counterparts in the European Union, as well as some individual member nations, along with regulators in a half-dozen other countries.

Amazon's treatment of third-party sellers and use of the data those merchants generate have emerged as the focal point of several of those investigations. The FTC began talking to Amazon marketplace sellers last fall, and both The Washington Post and Bloomberg spoke last year with vendors who claimed Amazon was treating them unfairly. The European Commission's competition bureau launched its probe into Amazon's marketplace back in July.

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