While primum non nocere — Latin for “First, do no harm” — is commonly associated with the Hippocratic Oath taken by physicians, its actual provenance is uncertain; the phrase likely originated with the English doctor Thomas Sydenham in the 1600s, but didn’t appear in writing until 1860. The uncertainty is just as well: core to the idea of primum non nocere is the danger of unintended consequences; sometimes it is better for a doctor to not do anything than to risk causing more harm than good.
The Federal Trade Commission has demanded information from the five largest US companies — Alphabet, Amazon, Apple, Facebook and Microsoft — about acquisitions of smaller companies as part of a review into possible anti-competitive behaviour in the technology sector. The US antitrust enforcement agency wants to know if the tech groups bought start-ups in deals during the past 10 years that may have been anti-competitive but which were too small to be reportable under a federal merger notification law…
Under a US law called Hart-Scott-Rodino, companies are required to notify the FTC and the Department of Justice about mergers and other acquisitions above a certain size threshold. The threshold for 2020 is $94m. The FTC said the orders were made under a rule designed to enable studies separate from antitrust enforcement investigations. “These orders are not being issued for law enforcement purposes,” Mr Simons told reporters in a conference call. “This is a research and policy project.”
I am glad for that clarification: I am all for the Federal Trade Commission being better informed about the tech industry; what increasingly concerns me is the potential unintended consequences of the government getting involved in tech acquisitions, particularly the small-scale ones implicated in this investigation.
Facebook and Instagram
In 2018 I declared at the Code Conference that “Facebook’s acquisition of Instagram was the greatest regulatory failure of the past decade”; it’s a line that I both believe and also regret, simply because there is a tremendous amount of nuance involved.
First, regulators didn’t actually make a mistake, at least according to the law; at the time of the acquisition Instagram had 30 million users and $0 of revenue. While it may have been clear to some that Facebook was acquiring a competitor, that required forecasting well into the future with a fair degree of uncertainty.
Second is the FTC announcement above, and other campaigns to limit acquisitions by large tech companies in particular: I tend to think that acquisitions in tech are largely good for everyone, from users to startups to tech companies, and I am increasingly concerned that focusing on one deal obscures that fact.
To back up for a moment, the problem in my eyes with Facebook acquiring Instagram was as follows:
- First, the power of an Aggregator comes from the number of users that are voluntarily on their platform; it follows, then, that an Aggregator acquiring a company with its own distinct user base, particularly one driven by network effects, is increasing its power.
- Second, while the user experience of Facebook and Instagram are distinct, the underlying monetization engine is shared. That means that for an advertiser already on Facebook, it became much easier to advertise on Instagram.
- The combination of Facebook and Instagram provides a one-stop shop for advertisers who wish to reach any demographic, limiting the monetization potential of competing products like Snapchat and Twitter, and limiting investment in the consumer space broadly as Google and Facebook consume the majority of advertising dollars.
I explored an alternate reality where Facebook did not acquire Instagram in this Daily Update:
The monetization point is equally straightforward. It’s not just that, as I noted yesterday, Instagram didn’t need to build all of the infrastructure of an ad business, a considerable undertaking. The company also didn’t need to acquire any advertisers — a task that is just as if not more difficult than acquiring customers — because the advertisers were all already on Facebook. Moreover, converting these advertisers from Facebook to Instagram was in some respects even easier than converting Facebook users: not only did Instagram and Facebook share both a salesforce as well as a self-service back-end, Instagram ads could be bundled with Facebook ads, making it not just easy to try Instagram but also ROI-positive in a way that a standalone Instagram offering at a similar stage of development wouldn’t be. And, of course, the ad unit was the same, reducing creative costs.
This is where it is critical to consider the entire ecosystem. Had Instagram continued as a standalone company I do believe it would have been successful in building out an advertising business; it just would have taken a lot more time and effort…What is more important, though, is that an independent Instagram would have been the best possible thing that could have happened to Snapchat. The fundamental problem facing Snapchat is that it wasn’t enough for the company to have higher usage or deeper engagement with teens and young adults, demographic groups advertisers are desperate to reach. As long as Instagram was using Facebook’s ad infrastructure, it would always be more cost effective to reach those groups using Facebook’s ad engine.
On the other hand, an independent Instagram, combined with Facebook’s relative weakness with those demographic groups, would have forced advertisers to diversify, and once an advertiser is building products for two different platforms, it’s much easier to add another — or, if they only wanted two, to perhaps choose Snap ads instead of Instagram ones. Indeed, those that argue that an independent Instagram would be like Snap may be right, not because Instagram would be as weak as Snap appears to be, but because Snap would be far stronger.
Facebook would argue that this undersells the degree to which it helped Instagram grow, or the fact that relatively unsophisticated advertisers that primarily use Facebook in fact benefit from Instagram reaching different demographics. What is certain, though, is that for whatever advances Snapchat and the rest of the consumer ad ecosystem are able to scratch out, they do not and will not operate at the same scale as Facebook, and given that, how much appetite is there to invest in future networks?
That noted, the Instagram acquisition is arguably the exception that proves the rule: most other acquisitions, particularly the small-scale ones that the FTC wants to look into, are a win for everyone.
The first group that benefits from large tech company acquisitions is end users. The fastest possible way for a new technology or feature to be diffused to users broadly is for it to be incorporated by one of the large platforms or Aggregators. Suddenly, instead of reaching a few thousand or even a few million people, a new technology can reach billions of people. It’s difficult to overstate how compelling this point is from a consumer welfare perspective: banning acquisitions means denying billions of people access to a particular technology for years, if not forever.
The second group that benefits from large tech company acquisitions is investors. If one of their startups creates something useful, that investment can earn a return even if said startup does not have a clear business model or user acquisition strategy. To put it another way, investors have the freedom to be more speculative in their investments, and pay more attention to technological breakthroughs and less to monetization, because there is always the possibility of exiting via acquisition. This benefit accrues broadly: more money going to more initiatives is ultimately good for society.
The third group that benefits from large tech company acquisitions is entrepreneurs and startup employees. Trying to build something new is difficult and draining; it makes the effort — which will likely fail — far more palatable knowing that if it doesn’t work out an acquihire acquisition is a likely outcome. Sure, it might have been easier to simply apply for a job at Google or Facebook, but being handed one because you worked for a failed startup reduces the risk of going to work for that startup in the first place.
It’s important to note that the sort of acquisitions the FTC is looking at almost certainly fall predominantly in this third group. Acquihires of failed startups is arguably the most tangible way that big tech companies contribute to Silicon Valley’s durable startup culture: there is more reason for entrepreneurs, early employees, and investors to take a chance on new ideas because the big tech companies provide a backstop.
Another way to consider these benefits, meanwhile, is to think about a world where acquisitions by large tech companies are severely constricted or banned:
- New technology would be diffused far more slowly (as the new startup scales), if at all (if the startup goes out of business).
- The amount of investment in risky technologies without obvious avenues to go-to-market would decrease, simply because it would be far less likely that investors would earn a return even if the technology worked.
- The risk of working for a startup would increase significantly, both because the startup would be less likely to succeed and also because the failure scenario is unemployment.
Still, isn’t this all worth it to have new competitors to the biggest tech companies?
The Implications of The End of the Beginning
Last month I wrote in The End of the Beginning:
What is notable is that the current environment appears to be the logical endpoint of all of these changes: from batch-processing to continuous computing, from a terminal in a different room to a phone in your pocket, from a tape drive to data centers all over the globe. In this view the personal computer/on-premises server era was simply a stepping stone between two ends of a clearly defined range.
The implication of this view should at this point be obvious, even if it feels a tad bit heretical: there may not be a significant paradigm shift on the horizon, nor the associated generational change that goes with it. And, to the extent there are evolutions, it really does seem like the incumbents have insurmountable advantages: the hyperscalers in the cloud are best placed to handle the torrent of data from the Internet of Things, while new I/O devices like augmented reality, wearables, or voice are natural extensions of the phone.
In other words, today’s cloud and mobile companies — Amazon, Microsoft, Apple, and Google — may very well be the GM, Ford, and Chrysler of the 21st century. The beginning era of technology, where new challengers were started every year, has come to an end; however, that does not mean the impact of technology is somehow diminished: it in fact means the impact is only getting started. Indeed, this is exactly what we see in consumer startups in particular: few companies are pure “tech” companies seeking to disrupt the dominant cloud and mobile players; rather, they take their presence as an assumption, and seek to transform society in ways that were previously impossible when computing was a destination, not a given.
What if this is right, and regulators severely limit acquisitions anyway? That would mean we would be limited to whatever innovations the biggest players come up with on their own, without the benefit of the creativity and ability to try new things inherent to startups.
Worse, a no acquisition strategy would actually make it even more difficult to challenge the biggest tech companies. Take Snapchat for example: many of the services’ innovative features from Lenses (Looksery) to SnapCode (ScanMe) to Bitmoji (Bitstrips) came from acquisitions. Any sort of policy that would limit Snapchat from getting better would hurt competition, not help it.
Threading the Needle
There is, at least in theory, a finely tailored approach to merger review that could get this right: any company that derives dominant market power from the size of its user base should not be allowed to acquire a company that has a significant and growing user base. The problem is that almost every part of that sentence gets really complicated really quickly when you start trying to make it specific. What is dominant market power? What is a significant user base, and how does that number change over time? How do you forecast the ultimate ceiling of a startup?
One possibility is retroactive enforcement, which the FTC has suggested is a possible outcome of this review. This, though, is problematic for all sorts of reasons.
- First, it weakens the idea of the rule of law: if the rules can be changed retroactively, then how can you trust the rules in the first place?
- Second, it almost certainly discounts the very real impact of the acquiring company contributing expertise, capital, management, etc. to the startup in question. Instagram is a good example in this regard: the service is far larger and far more profitable than it would have been on its own because of Facebook’s contributions, and it would be fundamentally misguided for regulators to effectively penalize Facebook for its contributions to Instagram’s success.
- Third, these first two reasons would chill investment in startups, for all of the reasons noted above. Suddenly acquisitions would be riskier, not just in the moment, but for years in the future. Adding regulatory uncertainty into a space defined by uncertainty seems like a very poor idea.
This, then, is how I arrive at primum non nocere: as much as I regret that the Instagram acquisition happened, I am deeply concerned about upending how Silicon Valley operates in response. The way things work now has massive consumer benefit and even larger benefits to the United States: regulators should be exceptionally careful to “First, do no harm” while pursuing the perfect over the good.