For the past five months, Matthew Boswell has been preparing to go to war with Big Tech.
Since taking over as Canada’s competition commissioner, Boswell has brought in new tools to handle tech-focused investigations, restructured his staff to prioritize the enforcement of digital issues and hired the country’s first-ever chief digital enforcement officer.
The office’s focus on technology comes as antitrust regulators around the world are launching major investigations into some of the world’s largest tech firms. On Monday, attorneys general from nearly every U.S. state announced an investigation into Google. The search giant is also facing investigations in Europe, Argentina and South Korea. Meanwhile, Amazon, Facebook, Apple, Uber and Tesla are all being probed from competition authorities and other regulators in various jurisdictions.
In an extended end-of-summer interview with The Logic, Matthew Boswell discussed his plans for the next four and a half years of his term, including bigger fines, more investigations and more collaboration with the countries that are already probing Big Tech.
There are currently no such public investigations into Big Tech in Canada, but there are signs that could soon change. In August, the Competition Bureau forced the sale of an oil and gas software company over monopoly concerns. In September, the bureau asked for people to report anti-competitive behaviour in the digital economy, citing as examples the type of behaviour for which Google and Amazon have faced investigations in other jurisdictions.
In an extended end-of-summer interview with The Logic, Boswell discussed his plans for the next four and a half years of his term, including bigger fines, new investigations and more collaboration with the countries that are in the midst of Big Tech probes.
This interview has been edited for length and clarity.
In May, you gave a speech to the Canadian Bar Association where you compared your four-year plan to climbing a tall mountain. You said you want the bureau to be “more agile and adapting to changes in the economy—particularly technological changes.” How are you planning to get there?
We’re taking multiple steps to drive toward achieving the vision. That includes upping our internal electronic-evidence tools, cooperating and working with our partners around the world to understand what tools they’re using to capture and analyze evidence.
We’re using predictive coding, all sorts of artificial intelligence tools. We’ve brought on a chief digital enforcement officer, George McDonald. We’re monitoring the marketplace more for potentially anti-competitive transactions or conduct in the digital economy. We’ve adapted what used to be called our “merger notification unit” to become the “merger intelligence and notification unit” so that we’re scanning the Canadian corporate world for non-notifiable transactions that might involve digital issues that we might want to look into, to make sure that there aren’t any competitive mergers that we wouldn’t otherwise be notified about.
You’ve spoken about some of the limits of the current legislation—in particular, monetary penalties for anti-competitive behaviour, and how they may not be high enough to effectively regulate tech giants. Is that still a concern?
Absolutely. This is not a concern that I came up with on my own. It’s been voiced by previous commissioners. For a competition-law violation that we refer to as “abuse of dominance”—which is the type of investigation that you’re seeing in other parts of the world with respect to tech giants—our legislation calls for an administrative monetary penalty of $10 million.
The U.S. Federal Trade Commission (FTC) fined Facebook US$5 billion, so there’s a scale difference there.
If you look at the European Commission directorate-general for competition, they have—mind you, they have a different legal system than we do in terms of proof—but they have issued a series of fines just to Google in the multi-multi-billions of dollars for anti-competitive violations.
It’s not just the EU. Germany is looking into Facebook; you’ve got a bunch of things going on against Google in various countries—
—So I think that’s a good opportunity to go back to your question: what are we doing? One thing that we’ve been doing in the last five months is working with our G7 competition-law-enforcement partners to examine the issues for all of us in the digital economy.
We produced a discussion paper for the G7 in France, [a] common understanding of the G7 competition-law-enforcement agencies for competition in the digital economy. The key points that we agreed on—the G7 countries plus the European Union—are the following: competitive markets are key to well-functioning economies; competition law is flexible—and that’s something the bureau has recognized repeatedly—that governments should assess whether policies or regulations unnecessarily restrict competition in digital markets; and, that we should promote greater cooperation and international convergence with respect to competition issues in the digital economy.
In Australia, the Australian Competition and Consumer Commission is leading the implementation of their consumer-data-right law, which is going to promote data portability. They’re going to start in banking and move to telecoms, which are important advancements for promoting competition in those sectors. And that’s the kind of work that the bureau would be happy to be involved in in Canada.
Would you be advocating for a system with no caps on how high fines can be? Do you have a number in mind?
It needs to be debated by parliamentarians. They need to look at the evidence, look at what our international counterparts have in terms of their toolkit. The Competition Bureau can contribute to that debate. We can work with policy folks at Innovation, Science and Economic Development on that issue. I don’t have a certain number in mind, or something to prescribe. But, for example, the European Union can look at 10 per cent of worldwide turnover as a fining metric.
The FTC and the Department of Justice (DoJ) are seeking major fines against pretty much all the tech giants. Can we expect to see cooperation between Canada and the U.S. on similar antitrust enforcement?
What I can say is that we regularly cooperate and communicate with our U.S. colleagues at the FTC and the U.S. DoJ on all areas of competition-law enforcement and deceptive marketing issues. So we’re in touch with them frequently.
Have you been in touch with them for their ongoing Big Tech investigations?
That’s not something I can talk about.
There’s been a fair degree of criticism around the amount of the fine in the bread price-fixing scandal and the amount of the fine against Volkswagen. How do you respond to critics that say that these are slaps on the wrist that don’t affect these companies’ bottom lines?
There has been no fine in the bread price-fixing scandal, as you call it. There’s one party that is cooperating with the bureau under our immunity program. They, on their own, decided to go down this gift card route to consumers. That had nothing to do with the bureau. Our investigation of all the other parties implicated in that matter continues.
In terms of Volkswagen, those administrative monetary penalties were at the absolute high end of what is possible under the Competition Act. And that case is actually, in my opinion, a great example of the bureau working to provide restitution to consumers. We worked both with the party under investigation and with class-action lawyers to arrive at a global settlement that resulted in over $2 billion of restitution in Canada. And that was a very innovative, groundbreaking resolution that the bureau arrived at.
But it was just a $15-million penalty. There was a $2.1-billion settlement to consumers. The criticism was more around the $15 million, not the $2.1 billion.
That was at the top end of what’s allowable under our law. So the criticism ought not to be directed at the bureau.
In May, you said that the merger intelligence notification unit had already found two potentially problematic transactions. It was only about two months old at that point. Has the unit found more problematic transactions in its monitoring since then?
Well, they’re constantly monitoring. I can’t get into details, but there are cases being examined that aren’t notifiable.
The criminal intelligence unit is also new. Why was that important to set up?
The criminal intelligence unit is consistent with initiatives by many of our domestic criminal law-enforcement partners. It’s an intelligence-led enforcement strategy. We put in systems so we have information on what’s going on with individuals and companies that we’ve interacted with in the past.
It’s really to use technological tools to be as efficient as we can, to manage information so that we’re not letting valuable criminal intelligence information slip through the cracks.
In the bread price-fixing allegations, there are 100 terabytes of data. So are you using new tools to sift through it? How are you dealing with the massive amounts of data that come with modern investigations?
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I’m not going to get into details on the tools we use. We’re constantly looking for new tools that we can bring on board to do things faster. We’re in the middle of a data explosion in the world.
One of the other interesting aspects of the digital economy—in terms of how fast-moving it is—is that if we are taking years to investigate, by the time we come to a landing on something, based on evidence, the world very well may have moved on. So we need to get faster.
And this ties back to a letter that I received from [Innovation] Minister [Navdeep] Bains back in May, where he requested that the bureau look into multiple issues in collaboration with the department of Innovation, Science and Economic Development. One of the issues that Minister Bains asked me to look into was the effectiveness of current investigative and judicial processes as they relate to competition-law enforcement. And that ties back to our ability to investigate quickly, to cooperate globally, to share information globally in a timely fashion.