Katherine Bleicher and Stephen Groh are associates in the Washington, DC office of Mayer Brown LLP.
When the CEOs of major tech companies appeared in prime position at President Trump’s inauguration, it brought the new Administration’s policies on Big Tech and AI to the forefront. The Biden Administration took an aggressive approach to litigating against Big Tech’s alleged antitrust violations and warning about the perceived dangers of AI, and so far the Trump Administration appears poised to continue enhanced antitrust scrutiny against Big Tech—though perhaps not as aggressively. Yet, while the Trump Administration has signaled an interest in continuing to use antitrust law to pursue Big Tech companies—as it did in President Trump’s first Administration—it has expressed much more skepticism of regulating the AI industry. And, in another break with the Biden Administration, the Trump Administration is focused on using its enforcement actions to target alleged censorship in Big Tech.
The Biden Administration: Four Years of Taking on Big Tech and AI at the FTC and DOJ
Former FTC Chair Khan and the AI Industry
Throughout the last four years, the Biden Administration focused on balancing the possibilities incumbent in AI with the risks to competition that could arise if a small number of large tech companies were able to monopolize AI technology and innovation. The former Chair of the Federal Trade Commission (FTC), Lina Khan, made regulating the AI industry and policing tech company practices a major bulwark of her tenure. The former Chair and her colleagues represented a belief that the regulators had been too easy on Big Tech for too long, which led to the growth and dominance of a handful of major tech companies at what they argued was the expense of competition and the consumer. As former Chair Khan explained, “The AI space . . . is so fast moving. And so, we really want to make sure that the opportunity for competition and the potential for disruption is preserved, rather than this moment being co-opted by some of the existing dominant firms to double down on their dominance.”
Because of these concerns, the FTC started inquiries into several companies, including Anthropic PBC, Microsoft Corp., and OpenAI, Inc., seeking information “regarding recent investments and partnerships involving generative AI companies and major cloud service providers.” The FTC’s focus was on the “competitive impact” of those transactions, including the impact on competition for “AI inputs.”
Echoing those concerns, representatives from the FTC and the Department of Justice (DOJ) participated in numerous conferences over the past four years with other members of the G7 to identify areas of concern and emphasize the role of competition authorities in combatting anticompetitive activity in the AI industry. In October 2024, they issued a joint statement with their foreign counterparts warning about ways in which the burgeoning AI industry could be harmful to competition. These groups warned about the concentration of AI inputs among a small number of players, the danger of large and established tech companies entrenching their positions by “anti-competitive self-preferencing, tying, [and] bundling,” and the potential of AI and algorithms “to facilitate collusion between firms, making it easier for them to coordinate prices or wages, share competitively sensitive information, and undermine competition.”
President Trump’s New DOJ—Continuing the Biden Administration’s Antitrust Prosecutions for Big Tech
President Trump’s pick to lead the Antitrust Division at the Department of Justice provides more insight into the Second Trump Administration’s approach on Big Tech and AI. President Trump appointed Gail Slater, a former policy advisor to Vice President Vance, to lead the Antitrust Division. Though it’s hard to find much overlap between the Biden and Trump Administrations’ policies in any area, both the Biden and the first Trump Administrations made antitrust enforcement against Big Tech a priority. In fact, Vice President Vance has previously signaled his support for some of the Biden Administration’s enforcement priorities as they related to the tech industry in general. At the same event in 2024, then-Senator Vance questioned whether the size and scope of Big Tech companies were harming innovation and said, “there’s a really good argument that if we want to be pro-innovation, we want to ensure that new entrants can change these things up, that you want to promote as much competition as possible and you actually want to separate all of these market verticals as much as possible.”
The fact that Ms. Slater previously worked for Vice President Vance suggests that she shares his interest in continuing antitrust prosecutions against Big Tech, and indeed President Trump issued a statement at the time he announced her appointment affirming as much. He said on TruthSocial, “Big Tech has run wild for years, stifling competition in our most innovative sector and, as we all know, using its market power to crack down on the rights of so many Americans, as well as those of Little Tech! I was proud to fight these abuses in my First Term, and our Department of Justice’s antitrust team will continue that work under Gail’s leadership.”
Ms. Slater will be inheriting a DOJ with several active antitrust cases currently proceeding against the tech industry, some of which originated during the first Trump Administration and continued by the Biden Administration, and others that were brought in the first instance by the Biden Administration. It is unlikely that Ms. Slater will halt these cases, but there has been discussion that the Antitrust Division may seek out less aggressive remedies in the future.
More recently, in March 2024, the DOJ sued Apple, alleging that Apple took anticompetitive actions that prioritized Apple apps and technology on iPhones, which reduced competition from other companies and ultimately made the user experience worse. This case is in its early stages, and Apple’s motion to dismiss the complaint remains pending, which means that the Trump Administration will be poised to set case strategy from the outset. The Apple case will serve as an early view into how aggressively the Trump Administration plans to pursue antitrust actions against Big Tech.
Combatting Censorship—The Trump Administration’s Top Antitrust Priority in Tech Markets
Opposing Big Tech firms’ alleged bias against and censorship of conservative viewpoints may be President Trump’s top antitrust enforcement priority in his second Administration. In the final year of his first term, President Trump issued an Executive Order on Preventing Online Censorship. Purportedly defending Americans’ “freedom to express and debate ideas,” this 2020 Executive Order accused social media sites of wielding their “immense, if not unprecedented, power to shape the interpretation of public events” by “engaging in selective censorship” against conservative speech. On the day of his second Inauguration, President Trump issued a similar Executive Order on censorship.
The President’s opposition to perceived censorship remains the same, but the names of the Big Tech platforms the President derided in 2020 are conspicuously absent from his January 2025 Executive Order. Rather than critiquing the platforms whose CEOs stood alongside him on Inauguration Day, President Trump now squarely places blame for censorship on the Biden Administration: “the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.” While President Trump faulting the previous administration is unremarkable, few could have expected former Trump critics and tech firm leaders to emerge as potential allies in Trump’s fight against Big Tech censorship.
Trump FTC Picks Will Target Big Tech Censorship
President Trump’s picks for FTC Chair and Commissioner have committed to advancing the Administration’s antitrust priorities, especially its focus on alleged censorship by Big Tech platforms. For FTC chair, President Trump selected Andrew Ferguson, the former Solicitor General of Virginia, who has served as an FTC Commissioner since April 2024. In a statement on Mr. Ferguson’s appointment, President Trump praised him for “a proven record of standing up to Big Tech censorship, and protecting Freedom of Speech in our Great Country.”
Mr. Ferguson has had numerous opportunities to officially comment on Big Tech issues during his short stint as an FTC Commissioner, often breaking with the former Democratic majority in dissent. For example, Mr. Ferguson and fellow Republican Commissioner Melissa Holyoak issued a dissenting statement last September In the Matter of Rytr LLC. The FTC complaint alleged that Rytr, an AI-enabled writing assistant, violated Section 5 of the FTC Act by generating false customer reviews that businesses could use to deceive consumers. The dissenting Republican Commissioners claimed that this “aggressive move into AI regulation [was] premature” and based in “ignorance” about the potential of AI. Instead of succumbing to “panic or hype” about AI and overregulating this “nascent” technology, Mr. Ferguson argued that the Commission should provide the AI “industry the space to realize its full potential.” More recently, Mr. Ferguson dissented from a section of the January 2025 FTC Staff Report on AI Partnerships & Investments, cautioning against the “drawing of broad conclusions about the AI industry and its future.” As Chair, Mr. Ferguson will likely continue to depart from the AI policies of his predecessor but now with a 3-to-2 Republican majority and the power to take the FTC in a new direction.
Indeed, in an “Agenda for the FTC” published before his appointment, Mr. Ferguson pledged to reverse former Chair Khan’s “anti-business agenda.” Vice President Vance, despite praising the former Chair’s general focus on Big Tech, has also cautioned that additional regulations for AI could hinder new, less-established companies from competing and innovating. Unsurprisingly, the new Chair has committed to ending “the FTC’s attempt to become an AI regulator.” Specifically, Mr. Ferguson plans to “[t]erminate all initiatives investigating so-called ‘disinformation,’ ‘hate speech’ or AI ‘bias.’” In a September 2024 dissent, Mr. Ferguson strongly critiqued the FTC Social Media 6(b) Report’s claims about AI. Particularly, Mr. Ferguson found the “Report’s claim that consumers can be ‘profoundly threatened’ and suffer ‘extreme harm’” from targeted, AI-powered advertisements to be “unjustified.” In Mr. Ferguson’s view, the previous FTC wanted tech platforms to “show consumers content that Washington bureaucrats would agree is higher ‘quality’” instead of allowing AI to “accurately predict[] what consumers want to see and showing it to them.” Rather than fearing AI’s potential to harm consumers, Chair Ferguson believes AI has the potential to promote competition by “providing much-needed competitive and innovative challenge to incumbent Big Tech firms.” His dissent also opposed the expansion of “AI safety groups” at Big Tech companies.
Moving the FTC away from AI regulation, Chair Ferguson will instead focus the Commission’s efforts on “antitrust enforcement against Big Tech monopolies, especially those companies engaged in unlawful censorship.” Mr. Ferguson recently outlined his approach to combatting censorship through antitrust enforcement in an official December 2024 statement. Like his Republican colleague Commissioner Holyoak, Mr. Ferguson urged the FTC to “investigate online platforms for unfair acts or practices relating to their opaque, unpredictable processes for banning users and censoring content.” “If the platforms colluded amongst each other to set shared censorship policies,” Ferguson reasoned, “such an agreement would be tantamount to an agreement not to compete on contract terms or product quality.” Mr. Ferguson has also warned of FTC enforcement against companies that retaliate by refusing to advertise on platforms that eliminated content moderation policies. In the same December 2024 statement, Mr. Ferguson wrote that “advertisers raced for the door and refused to advertise on X” after Elon Musk purchased the platform. Then-Commissioner Ferguson cautioned that “[c]oncerted refusals to deal—also known as group boycotts—are illegal under the Sherman Act.”
Mr. Ferguson is also likely to engage in more traditional antitrust enforcement in tech markets. Much like his predecessor, Mr. Ferguson will continue to “[p]ursue structural and behavioral legal remedies under the antitrust laws and the FTC Act to make sure large platforms treat all Americans fairly and to prevent them from using their market power to box out new entrants and stymie innovation.” However, the FTC will likely be less aggressive in targeting Big Tech monopolies moving forward. Mr. Ferguson’s agenda promises to end “Lina Khan’s war on mergers,” because “[m]ost mergers benefit Americans and promote the movement of the capital that fuels innovation.” Thus, while the Commission will continue to scrutinize mergers “that harm competition,” it will be less critical of mergers than it was under Ms. Khan’s leadership.
In addition to his appointment of Andrew Ferguson as Chair, President Trump also selected Mark Meador, former Chief Counsel for Senator Mike Lee, as the FTC’s fifth Commissioner. Like Mr. Ferguson, Mr. Meador is a vocal critic of Big Tech, who has publicly supported antitrust enforcement actions against Big Tech firms. On the other hand, Mr. Meador may be a stronger proponent of merger review and structural remedies than Mr. Ferguson. Thus, when confirmed by the Senate, Mr. Meador will be closely—but perhaps not perfectly—aligned with Chair Ferguson’s approach to antitrust enforcement in technology markets.