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

Introduction to AI Regulation

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0:21Hello and welcome to Decoder. I'm Neil Ipatel, Editor-in-Chief of The Verge, and Decoder is my show about big ideas and other problems. This is part one of a two-part series we're doing on the future of business. 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%,

0:51and 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. 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 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 Cantor, the former antitrust chief of the United States Department of Justice under the Biden administration. These days, he's both a professor of law at

1:25and a professor of technology policy at Carnegie Mellon. During his time as the DOJ's antitrust chief, Cantor brought huge cases against Google, Apple, and Ticketmaster, and along with Lena Kahn, 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. A vowed libertarian and former Trump AI star David Sachs has been approvingly retweeting

1:56Lena Kahn, 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 Cantor, former DOJ antitrust chief on AI safety and regulation. Here we go. Jonathan Cantor, the former head of the DOJ antitrust division in the Biden administration and a current professor of law at WashU and professor of technology policy at Carnegie Mellon. Welcome back to Decoder. Always a pleasure to be back.

2:29This is great. You're a private citizen now. You don't have to give me the politician answers. I can say whatever I want. I feel so free. I'm very excited about this. I plan to as well. 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

3:02to 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 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.

State of AI and Safety Rules

3:33So 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 the things that government should be doing? And I think they're responsibilities on both ends. And so happy to dive into both.

4:08Well, let's just start with the very notion that asking for regulation necessarily forms a cartel. All the big frontier AI companies, Open AI, 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,

4:38most 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?

Cartels and Product Liability

4:47Kind 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.

5:17That's probably there's a modicum 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, 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

5:47all 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. 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. 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

6:23in order to deliver safe and secure products to society. Think about this. Imagine like Boeing and Airbus. Boeing, you know, a few years ago had 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. You need to figure out what went wrong

6:56in 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 their 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

7:32there is legitimate collaboration in the context of safety and security. 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

8:03down, 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, 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

8:35taken off the market. All right, let me, I want to dig into robot jail specifically in 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 that there's our 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

9:10agent goes and hacks you at my directive, is that anthropics fault, right? Are we going to create some kind of pass-through liability? Does that happen already 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? Both and, right? And so companies employ people, and they build technology. And when those people and those technologies do things that are problematic,

9:41including stealing or breaking into someone else's property, on behalf of their employer, there's liability. And that 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. Wait, hold on. I want to hold, that is really fascinating to me. Like, this is a thing I'm

10:13like really interested in talking about, because it took a decade for it to work. 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

10:48that 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. 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

11:24to 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 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. 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

11:57is 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 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 and more secure products from the get-go at the outset of this technology. Well, let me make the comparison to social media regulation just a little more tightly.

12:27Okay. 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 moderation of Facebook. But they did lose one to a jury, right? 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. And the only reason I'm saying that is Meta gave in to the regulator, right? And their posture

13:01at 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, open AI, you are probably liable for what ChatGPT does. Anthropic, you are probably liable for what Claude does. Isn't this the moment to actually tighten the screw and pass the regulation that says you are definitely liable? Yes. This is the job of Congress, which is to clarify the law. But I think the environment today is noticeably

13:38different 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

14:09Valley. 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 the results of that have eroded or destroyed any trust the public has in these technology companies. I think one of the reasons we're having this conversation a lot earlier in the process now is because people are like, well, fool me once, shame on you. Fool me twice, shame on me. And so I think the good news is I think

14:41there'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, 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 the other piece is states. States have actually done a better job than the federal

15:18government. 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. And I think the public is saying, and the companies are saying, let's sit down and figure out something sensible. 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

15:50to come. Even though those consequences are hazy in the long term, they seem not so hazy in the short term. Right. And some of this is, listen, the companies have done a terrible job at messaging. They have effectively said, 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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Political Alliances and China

17:33I 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 Sachs, who is 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.

18:05And if you want to stop, just stop. That is an absolutely shocking kind of political alignment to me. Where do you think that's coming from? So it's actually, it's a realignment of the realignment. You know, going back to Trump 1, 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 Lina and I came into office, we had a mandate and a lot of public support, frankly,

18:35to be aggressive in enforcing the law against big tech. And then, you know, came the inevitable backlash in the Trump administration. And 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 damn break once more. But if I was to describe to you a day in which David Sachs is approvingly retweeting Lena Kahn while Bloomberg columnist Joe Wiesenthal is saying all these people are just saying Lena Kahn was right about the power of cartels.

19:07And hours later, Bernie Sanders and Steve Bannon are sharing a stage in D.C. calling for a dead stop of AI development. That doesn't look like anything that we've seen before. 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.

19:44And 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 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 your members are coming in and helping us figure out how to bring our cases.

20:17And I know you don't like the reputational hit of that, so here are some, you know, 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 get kind of weird and funky, like you're describing. But, you know, I think if you look at the data center issue, for example, I mean, it's not left or right.

20:56It'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, you know, kind of internet and social media revolution where, you know, 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 a complete stoppage.

21:29I 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. 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?

22:01They 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 that Chinese models might overtake them.

22:32And 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? It's largely a convenient boogeyman. So we've been, you know, in 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.

23:09And 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 great as countries. 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 technology. China censors what people see in its borders. China actually manages, centrally controls a lot of its corporations through state-owned enterprises and influenced enterprises.

23:44So 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 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.

24:29It 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 boundaries of a free market, but doing so in a way that is beneficial. 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?

25:01We 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 is 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 is the best framework to understand that? So the best framework is we should promote dynamic, aggressive competition inside the borders of the United States, right?

25:34And 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?

26:04We were founded 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 an 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.

26:45I was reading with my law students the other day a case from the 80s where the allegations were that Japan, companies in Japan, were cartelizing 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 U.S. 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.

27:21There are legitimate questions about what we need to do to make sure that, you know, there is fair competition in a fair playing field, that we're protecting 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.

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28:27So 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 is circular, financed all of these companies. They're already coordinated. That product liability theories of harm will just fall on their face because there's no way OpenAI would ever sue hugging face because NVIDIA just bought hugging face. And NVIDIA is the biggest investor in OpenAI.

28:59Do you need to go break that up?

NVIDIA and National Champions

29:00Do you need to go pull that all apart? Well, somebody should be looking at these issues, right? Like this is what we were starting to do when we were in office is 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.

29:39And that's the piece that I don't quite understand. What does beating China mean? I get the issue of if China has these advanced bots that are violating and infiltrating our companies and our government 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.

30:20This is a big debate across the United States government right now, right? 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. So there's more coordination between the government and private industry in a Republican administration than you would ever expect in history. Owning the means of production. What does that sound like to you? It is – and then they call everyone else communist, which is great. Yes. Again, the realignment is wild stuff that's happening out there. 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.

30:58But it – well, the grocery stores are a huge threat to the American way of life.

31:05There'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? 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 hit the nail on the head – national champions. China is a country of national champions.

31:36The 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 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 more it calcifies. And I hope we – and again, this is not anti-business, just to be very clear, or anti-market.

32:12I'm a capitalist, a card-carrying capitalist. I'm proud to say I am. And 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.

32:43And I think we are more vulnerable when we have central points of failure, 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 for the thousand flowers blooming inside the borders of the United States. 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?

33:22Are they at war? Is it a total scramble? It's a total scramble. I'll take one issue. I don't think what I articulated is a conservative from the 90s. I think the conservative of the 90s were, you know, antitrust 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 70s should be thrown away and we should let industry consolidate. And we did. We saw industry consolidate. 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 the sense of opportunity not being widely available.

34:04In terms of your question, it is a scramble. I think the plates are shifting. And I think where everything ends up is still unclear. We are living through the transformation of our politics and our ideals and Republicans and Democrats and conservatives 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 kind of remarkable.

34:38It's an interesting thing to observe as somebody who likes to study markets and technology and policy. And it's, again, not all of this is bad. I think we do need some realignment. We need to take an 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 what we are living through is kind of – there are two things that are happening.

35:08One is from the 80s to probably the 2010s, we were kind of living through the Reagan era of neoliberal politics and policy. And I think that the left and right have both rebelled against that. And so I think 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 in the New Deal era for nearly 100 years. That era is over.

35:39And 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 international relations. All of that is being rebuilt or stripped down to the studs, including our government agencies themselves, our regulatory structure, right? The way this AI issue would have been handled 50 years ago is we would have created a department for AI safety or something, or AI, and they would have promulgated rules and they would have had folks looking at it.

36:14And that might not have been the right approach, but that's what would have been the approach. The Supreme Court essentially threw that out the window. That'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. 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 saw that, and I was like, but what you would do is regulate them. So you should just hire some people to do it.

36:44You should just delegate. Well, this is the irony. A good friend of mine, Dave Lawrence, wrote a piece in The New York Times a few weeks ago kind of saying just 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 executive branch to do it without any process, without any input, and essentially with very little structure, which does lead to regulatory capture, which does lead to inadequate or inequitable outcomes.

37:21And I think that's what we're confronting right now. And so, again, I think this is all consistent with what I was saying a few moments ago, which is kind of ripping down to the studs, the New Deal era. 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 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.

38:02Let me ask you two questions to wrap this up. You mentioned some eras. You, along with Lena Kahn, brought forth a new era in antitrust. Some people called it hipster antitrust. The academics called it neo-brandesian antitrust. Just look at my hairline. I'm far from a hipster. You're much cooler than I am. 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. Successfully. And we won our cases.

38:34Our cases on the law won. We beat Google in court twice. We survived our motion to dismiss on Apple. We put together a ticket master 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 health care. We fought for the public because the public wanted someone to fight for them. The settlements in the Google cases did not achieve the results. Not the settlements, the remedies, which I did not preside over.

39:06I presided over the victories. We handed the baton over to the next administration. The remedies were admittedly disappointing. You know, 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.

Antitrust Legacy and Future

39:34Do 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 this. Not at all. It's not a failure. In fact, I mean, there were 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.

40:06And 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 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 should – 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.

40:50So, 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, right? Johnny Ive has gone to go make hardware devices at OpenAI, and Apple's suing them. There's a lot going on here.

41:20But what strikes me is the conversation we're having today is about the challengers, not the monopolists. 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, right?

41:54I 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 the large player. It's about making sure that the smaller players have an opportunity to compete as well. 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.

42:24It is surprising. I mean, the guy showed up with gold bars to the White House. If that doesn't do it, what will? Do you think it's just because they still think there's something there or is it just leverage in the background? I have no idea. I have no idea. It's a strong case. It's a good case. You're not a politician anymore. You can just say it. Say what you think. No, I told you the guy showed up with gold bars. I think it goes to this, if I had to say, which is – I mentioned that for every monopolist, you have dozens of other companies, if not hundreds, that are upset with the monopolist.

42:56And 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. 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.

43:30If you had to make your list of prescriptions, if you were the policymaker, how would you organize them and what would you say?

Policy Prescriptions

43:36I 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, OK, here are the things we value as a society.

44:11We value mental health. We value competition. We value authenticity of information. We value intellectual property and copyright of 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 OK and what's not. Maybe we'll get a Congress that can do that in the next term. I hope so. We're going to have to have you back soon, Professor Cantor.

44:42Thank you so much for being on Decoder. My pleasure. Thank you so much for being on Decoder.

45:14This 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. This podcast is supported by Anthropic, the public benefit corporation behind Claude. Everyone's got a hard question about AI. Anthropic was built to surface those questions and share what it finds along the way because there's hope in hard questions. Ask yours at Claude.ai slash Spotify and keep thinking.

45:45That's Claude.ai slash Spotify.