Speech of Martijn Snoep: market power and democracy

On 11 November 2026, Martijn Snoep, Chair of the Board of ACM, held the first Louis Brandeis lecture. The topic was: market power and democracy in the era of Big Tech.

Introduction

Louis Brandeis is known as one of the driving forces of the right to privacy. He is less known for being the driving force of the idea of Regulated Competition, with a starring role for the Federal Trade Commission (FTC). Forget context and relative size just for a moment, and you would be forgiven if you called the FTC the Authority for Consumers and Markets of the USA.

Louis Brandeis’s idea of regulated competition emerged at the dawn of the 20th century, and it is in this current day and age where it has found relevance once again. In this lecture, I will discuss three steps. In order to understand the relevance for this current age, I will first discuss the political and economic circumstances and problems in which Brandeis’s idea of regulated competition came into being. A warning in advance: I may cut some corners here and there. I’m not a historian after all.

I will subsequently discuss the present: what are the similarities with today, and are the problems comparable?

Finally, I will discuss four choices that we as European and Dutch societies have in order to do something about these problems: regulation, prohibition, laissez-faire, and collaboration. Spoiler alert: the answer isn’t ‘either or’, it’s both, or rather: all four of them.

So past, present, and future. Let’s start with the past.

The US at the dawn of the 20th century

In order to understand how Brandeis’s idea of regulated competition came into being, we need to take a look at the political and economic circumstances in the US during the second half of the 19th century. Over the timespan of almost half a century, the country transformed itself from an agrarian economy into an industrial one. The technological advances and industrialization led to a large-scale decline in the number of independent craftsmen (these were usually men at the time), who produced semifinished and final products from their workshops. In their place, large manufacturing plants emerged having economies of scale as a result of efficient, centralized production processes.

Take shoes, for example. In 1862, a shoemaker produced in his workshop, on average, 300 pairs of shoes per year. Forty years later, that same shoemaker produced, on average, four times as many: over 1,300 pairs of shoes. But instead of working from his own workshop, he was standing behind an assembly line in a large factory building, working on a tiny part of the total production process.

Virtually all sectors of the US economy experienced this spectacular growth in productivity. Total welfare increased. Yet, not everyone reaped the benefits thereof in equal measure. Powerful companies arose around the most-important pillars of this new economy. They determined the prices and reaped high profits. Smaller competitors were, at best, tolerated as long as they did not pose a threat. Steel, Coal, Oil, Transportation, Banks, Meat, Bananas, Media, Clothes, Sugar, and Tobacco were all led by powerful families with strong mutual financial and social ties. These were called trusts. And that immediately explains the origins of the term Antitrust.

These trusts (or oligarchs as we would call them today) amassed great fortunes, and had an iron grip on the economy. The owner of the shoe factory in our example, could keep most of the profits of the productivity growth in his own pocket. The shoemaker, however, was hardly better off in terms of welfare, and actually lost in terms of freedom and autonomy.

During that same period, the interests of the government and those of these trusts became more intertwined. Strikes were violently crushed with the help of the long arm of the law. High tariffs were introduced to stave off competing imports. Plots of land were generously handed out for new business activities, with little care for the environment. Donations filled the coffers of lawmakers that supported corporations. That money was used for media campaigns to influence elections.

Since US production was larger than domestic consumption, new foreign markets needed to be opened up, too. Moreover, it was necessary to secure the import of raw materials. To a significant extent, US foreign and military policy at the time served those interests of the US conglomerates. The annexation of the independent Kingdom of Hawaii supported the sugar interests. The Panama Canal was built under US military pressure for the benefit of the transport sector. It’s not a coincidence that the phrase ‘banana republic’ was coined in this period. The interests of major US banana companies (supported by the US army) dominated the political and economic policies of smaller Central American countries.

However, around the turn of the century, there was growing domestic opposition in the US against these trusts and against the unequal distribution of welfare growth. Workers, consumers, and smaller businesses organized themselves, revolted, and put forward alternative economic orders. Two rivaling groups emerged, each with different sets of solutions. The Populists and the Progressives.

First, the Populists. They wanted to outlaw concentrations of power, and to break up companies in order to return to a more decentralized economy.

On the basis of new legislation, several trusts subsequently were indeed broken up. But to put that into perspective: only three were broken up in that period. Only after WWII, two more followed. The first and most spectacular break-up was that of Standard Oil into 34 pieces. However, to put this further into perspective: the remaining piece (Jersey Oil) was, at the time, still the second largest company in the US.

The other set of solutions, that of the Progressives, entailed the regulation of prices and output of large companies conducted by government committees. In that way, economies of scale could be kept without the drawbacks of monopolization.

It’s therefore not surprising that the owners of the large companies fought both sets of solutions tooth and nail. They entered politics, bought influence over politicians, framed their opponents as “Unamerican” or “Socialists”, and warned the world would fall down if the 19th-century laissez-faire economic order came to an end.

Regulated competition

It is in this battle between the Populists, Progressives, and laissez-faire supporters where Louis Brandeis put forward a third way: Regulated Competition. He embraced the idea that competition has both good and bad outcomes. The economies of scale enjoyed by large companies can lead to welfare growth for all classes of society. But they can also lead to a concentration of power. That can result in an unequal distribution of wealth, and in democratic backsliding. The rivalry that is typical of competition can lead to innovation that improves the lives of many. Yet that same rivalry also unleashes urges in humans that can tear apart the social fabric of society, and stand in the way of collaboration.

His third way of Regulated Competition kept the process of competition, but created guardrails in the form of regulation. These were meant to promote favorable outcomes. Also, there had to be scope for collaborations between businesses to improve products and production processes, and to realize economies of scale. You could not leave that to the market. An independent, fact-based and expert government agency would have to conduct oversight. It would also have to have the power to take action and to issue recommendations in order to steer competition in the right direction. The purpose of this government agency’s interventions and recommendations was not so much penalizing anticompetitive practices as preventing such practices from occurring in the first place.

With the election of Woodrow Wilson in the 1912 presidential election, Brandeis’s ideas got wind in its sails. A bill was drafted, which introduced the Federal Trade Commission. Section 5 would play a key role, under which the FTC was able to take action against anticompetitive practices, not only by penalizing afterwards, but also by setting rules in advance in order to prevent such practices. Moreover, the FTC could give recommendations to businesses about what practices were and were not allowed.

After a long discussion and numerous compromises, the bill was passed in 1914, and the FTC was created. Brandeis himself would never sit on the FTC. In 1916, he joined the US Supreme Court. He remained on the court until 1939, which was two years before he passed away.

For this lecture, it would be too much to discuss the final compromise and the subsequent evolution of the FTC. I will also leave untouched the role of Brandeis and his ideas about competition on the US Supreme Court. My main point was to establish a link between the present day and the era in which Brandeis lived and his idea of Regulated Competition emerged. That means it’s time for the second part of this lecture: the present.

The present

The parallels between the era of Brandeis and the present are hard to ignore. A small number of large US companies (let’s call them Big Tech, for the sake of convenience) offers services that, at once, increase total welfare through productivity growth, and form a threat to the distribution of wealth and to democracy itself. AI, cloud computing, digital platforms, and social media lead to innovation, productivity growth, and Schumpeterian creative destruction. They shake up existing markets and offer new opportunities for entrepreneurs to develop services, which result in further productivity and total welfare growth.

Barriers to entry (in the sense of starting your own business on the basis of an innovative idea, and finding customers) may never have been lower than today. Fixed costs are usually low, especially in comparison with investments in old-fashioned production locations such as blast-furnaces, refineries, and production lines. The majority of the costs is variable and scalable. Think of AI tokens, cloud costs, salary costs, and office leases. As a result, running a business has become more democratic than ever before, in the sense that it has become a realistic option for almost anyone that can and wishes to do so.

Communication, too, has democratized. One-to-one communication has become cheaper and easier than ever. Gone are the days with per-minute phone rates or airmail paper to save on stamps. Conference calls have become available for everyone, and, in many sectors, have become the rule rather than the exception.

Also, a democratization of mass communication took place. Access is no longer checked by gatekeepers in the form of publishers of newspapers and books, television stations, and record labels. Anyone with a good idea (or with a bad idea, but more on that later) can find a large audience almost effortlessly. Those in power thus have trouble preventing the challengers from entering the political arena. At the push of a button, new scientific and cultural ideas find their way to a global audience.

For the dissemination of his then-radical ideas, Erasmus could use a small book printer / publisher in Germany, as well as a European network of post riders. However, anyone reading his biography about the time and effort it cost him and how often it went wrong fully understands he would have been ecstatic at today’s options.

And here ends the goods news.

For at the same time, we see a high dependence on these companies that offer us (individuals and businesses) those benefits. Each service has few alternatives, if any at all. First of all, that dependence translates into high costs for users. Big Tech’s stock prices are still high despite the recent market correction, which indicate high profits and even higher profit forecasts of investors.

A considerable share of the benefits for users is currently already reaped (and later, even more so) by only a handful of businesses and their shareholders. As was the case with the 19th-century shoemakers, the largest companies and their investors in particular are very likely to reap the benefits of the productivity growth and new technologies.

Yet, there is another problem. It’s no longer just about money, but also about giving up important rights such as privacy, autonomy, and human dignity. People willingly give away some degree of control over their own bodies, minds, relationships, and their paths in life. They do so by succumbing to tempting free services that unnoticeably interfere with their deepest emotions, urges, and vulnerabilities.

Think of chatbots that take on the role of life partner, friend, or therapist. Or of addictive algorithms that hijack our scarce attention at the expense of the other and of ourselves. These algorithms tempt us into making purchases that we otherwise never would have made. And they polarize our social networks, until we eventually end up only communicating with likeminded individuals in self-selected echo chambers. Since we share so many of our innermost feelings, services can be more and more hyperpersonalized. And, in the background, all of this is monitored in real time to see whether the algorithms have the desired effect. And adjustments can be made, where necessary.

And that’s not all. Because, in addition to the problem of welfare distribution, and the problem of infringement of fundamental rights, there is another problem. The problem of sovereignty.

As in Brandeis’s era, the interests of the government and those of Big Tech have become intertwined. In that sense, the world-famous pictures of the Big Tech CEOs prominently attending President Trump’s inauguration are quite symbolic. We can witness the effects of this interwovenness on a daily basis, although these have suffered somewhat as a result of the recent midterm elections.

This interwovenness between the US government and Big Tech also has negative consequences here in Europe: for our sovereignty and our ability as a society to determine how we want to organize our society. Sanctions are threatened to protect digital markets. In elections, extreme-right and pro-Russian candidates are supported. Statements that foment polarization and social unrest are protected. And regulation that seeks to limit this is fought with an army of lawyers and lobbyists.

Other examples of the interwovenness of the US government and Big Tech is the boycott of the International Criminal Court, which is based in The Hague, and the restriction of Ukraine´s use of Starlink. Kill switches for blocking crucial services to countries or organizations that refuse to go along are real, and are no longer part of the realm of conspiracy theories. For the security buffs out there, I highly recommend a documentary made by the VPRO show Bureau Buitenland, which can be streamed on NPO Start, where tech lawyer Ot van Daalen outlines a scenario of what can happen.

ACM itself also had to deal with this interwovenness between Big Tech and the US government. It’s widely known that there is no love lost between, on the one hand, Big Tech and the current US administration, and, on the other and, the Digital Markets Act (DMA) and especially the Digital Services Act (DSA). ACM enforces the DSA in the Netherlands. As part of its enforcement duties in connection with the 2025 Dutch general election, ACM invited the Big Tech firms to a roundtable discussion. The aim of this discussion was to steer enforcement in the right direction, and to create clarity regarding everyone’s statutory roles and responsibilities. Later, it turned out that the House Judiciary Committee had requested documents about this meeting. This request included invitation emails, the agenda, and the list of attendees. These mails were published by the US House of Representatives as an annex to the report “The Foreign Censorship Threat - Europe’s Decade-Long Campaign to Censor the Global Internet and How it Harms American Speech in the United States”. The report and annexes were published without redacting the names of the ACM employees in question. The names of the Big Tech representatives in question were redacted.

This revelation came (to put it mildly) as a highly unpleasant surprise to ACM as well as to the ACM employees in question whose privacy had been violated, and who were concerned about further repercussions. The Big Tech companies had submitted the information, including the personal data of ACM employees, to the US House of Representatives. They had failed to inform ACM about this, either in advance or afterwards. Despite several attempts on ACM’s part, the US House of Representatives so far has refused to remove these personal details. It’s therefore hard to find any other explanation than to see these actions as a direct attempt to intimidate ACM and individual employees, and, as such, to frustrate enforcement of the DSA. I can assure you that this attempt has failed, but it’s important to keep sharing this story.

As Louis Brandeis himself once wrote: ”Sunlight is said to be the best of disinfectants”.

This brings me back to this lecture’s main question on how we protect ourselves against the power and dependence of Big Tech. But there’s another aspect that deserves attention, something that is new. Because, unlike 100 years ago, it’s not just about the distribution of wealth and the protection of democracy against the influence of big companies. It’s also about the protection of us as human beings against ourselves.

As humans, we (including myself) are not just the victim here, but we’re also an actor, maybe even an unwittingly complicit actor. After all, we abandon ourselves (often voluntarily) to tempting free services that interfere in our deepest emotions, urges, and weaknesses. We knowingly share private information. We fall for the ease of pre-selected options, recommendation algorithms, and all-under-one-roof ecosystems. We cast aside alternatives that are slightly inferior or less useful, or that cost money. We thus knowingly make ourselves dependent on that same clique of companies that cause the aforementioned problems.

Which brings me to the third and final part of this lecture: the choices that we have to do something about these problems and to prevent further harm.

Choices

Finding solutions to these problems starts with the acknowledgment that we as a society have and can make choices to do something about these problems. These are choices for ourselves and (through European and national democratic processes, while keeping fundamental rights intact) sometimes also choices for others. The problems that we encounter are not the result of laws of nature such as gravity or the result of natural disasters such as a meteorite impact. These problems are the result of the actions of others. We can do something about that, or not. Doing nothing is also a choice.

In a previous lecture, I argued that we as European and Dutch societies have three choices: regulation, prohibition, and laissez-faire. I still stand behind those choices. But today, in the spirit of Brandeis, I will add a fourth choice: collaboration. I will discuss these choices one at a time, and in that order. That is not to say that I’m suggesting that we should pick one of them. The most sensible approach is to see what the best choice is for each subproblem and each service. As I already said at the beginning: the answer isn’t ‘either or’, it’s both, or rather: all four of them. But my main point is that we have a choice.

First of all, regulation: what can rules and oversight do for us, and what are their limitations?

Regulation

If a product or a service has drawbacks, in addition to its benefits, the knee-jerk reaction is to call for more or better regulation. Completely banning a product or service is often seen as too paternalistic, and a laissez-faire approach as too anarchistic. Think of the public debate on smoking and soft drugs.

This is no different from the concerns about Big Tech. More and more regulation is introduced in the digital domain, which, with the best intentions, seeks to keep the benefits, but, at the same time, also seeks to protect people and businesses, sometimes against themselves. Think of the DMA, DSA, DA, the AI Act, the EMFA, CSA, NIS2, and the DFA (in the making). These are all attempts to do something about the identified problems. However, I want to make three comments here.

First of all, the drawback of regulation is that it requires rules as well as enforcement of those rules, whereas we can see that Big Tech companies do not easily resign themselves to many of these rules. In our democratic societies governed by the rule of law, big and powerful companies in particular have plenty of options to prevent or influence regulation. In addition, they can obstruct or delay enforcement. As a result, it is highly likely that regulation and enforcement only have an effect when the harm has become irreversible, or the problem has already become outdated. The operation was a success, but the patient died.

Second, regulation and enforcement require action from the legislature as well as making people and resources available. The preconceived notion that rules are to blame for the lagging economic growth in Europe does not help in a call for more rules. In addition, the recently announced cutbacks to the Dutch civil service will not help either. Yes, there is always room for improvement, but going back to a civil service that is 25-35 percent smaller will also have an effect on the enforcement of existing rules, let alone new rules. Even private enforcement (individuals or interest groups bringing proceedings before the civil court) is under pressure from active anti-WAMCA lobby, although this is an important supplement to public enforcement, especially if public enforcement can’t deliver the goods later on as a result of those cutbacks.

Third, it’s good to keep in mind that many regulatory rules seek to protect individuals and businesses against something they want, or at least think they want. As a result, it remains an unequal fight, similar to the fight against alcohol, saturated fats, and sugars. Which is also why information and transparency obligations have so little effect. They hardly protect us against ourselves, or even completely fail to protect us at all.

One important goal of regulation is obviously also to set norms, by which I mean that the government shows that certain behavior is not acceptable. But if that is the only intended effect, and behavioral shifts fail to materialize, it will eventually erode the government’s authority. Parents of young adolescents who, like myself, have tried in vain to turn around irresponsible adolescent behavior surely know this phenomenon all too well.

Don’t get me wrong, I’m not saying we should stop conducting oversight or stop regulating, but it’s also good to recognize the limitations thereof.

Prohibition

That was the first choice, regulation. The second choice goes further: prohibition. Prohibition may, at first glance, seem like regulation, yet it’s something completely different. With a prohibition, the legislature (which, ultimately, are us) is not trying to limit harmful effects as much as possible, but simply block certain services entirely from being distributed in their own territories. As a result, the risk of harm is reduced as much as possible, but the benefits can’t be enjoyed either.

That is not something we are used to in Europe, and something we only know from countries we would rather not take as an example, but it is an option. Naturally, there will always be ways to circumvent such bans. However, a ban that is supported by a democratic majority and one that is within the boundaries of fundamental rights can be an option. It is obviously a choice that comes with major drawbacks, but, then again, any choice comes with drawbacks.

I fully understand that a ban is a far-reaching instrument in an open society where its citizens enjoy many freedoms to do things that may not necessarily be in their own interests. However, something greater is at work right now. There seems to be scientific consensus emerging about the fact that there is a causal relationship between certain digital services and certain negative effects that are passed on to society. Individuals in vulnerable situations in particular feel those effects. Think of mental-health problems among youth, polarization of groups at the fringes of society, and the erosion of fundamental democratic values. I’m not making a case here to simply ban all services that contribute to this. We can also prohibit certain services for certain groups or certain applications, such as the use of AI in decision-making that affects fundamental rights of individuals.

In any case, in a democratic society governed by the rule of law, we should not rule out a priori the option of prohibition. In fact, on the basis of the precautionary principle, we should even expressly weigh it against the alternatives.

Think back to Odysseus one more time. In order to resist the temptations of the Sirens, he had himself tied to the mast, and ordered his crew not to untie him, even if he ordered them to do so. With a prohibition, we tie ourselves to the mast, too. It may well be the only way to resist certain digital temptations.

In that context, it’d be wise to start with protecting children against those services that are most harmful to them. The precautionary principle may even force us to do so. Moreover, the counterargument of unsolicited paternalism (which in itself is a valid argument) is also the least effective here. In that respect, the EU Kids Act and various national laws protecting minors are the first signs that, by now, prohibition has become an option as well. Let’s keep a close watch on how all of this plays out in practice. Experimentation is allowed, and even necessary perhaps.

Laissez faire

After regulation and prohibition, we come to the third option: laissez faire. With this option, the question shifts to the boundaries to what we can and want to prevent. Society and the economy can only be socially engineered so much, and people are good at adapting themselves to new circumstances. Nothing lasts forever.

In the 1970s, my parents were very much concerned about the effects that the television had on my development, especially the influence of US television shows with a lot of unnecessary violence (at least in the eyes of my parents). Watching television came with strict rules and time limits, otherwise I would end up in the gutter. In hindsight, we would say: blessed are the parents that were worried about harmless television shows featuring tough cowboys and cool police inspectors. But people did have different views back then, and not just my parents.

A deliberate laissez-faire approach can also be an option, because the recent elections in Brazil and the US have shown that not all elections can be bought with money and influence. And that social media can also help mobilize people, and help expose injustice. Democracies are not impregnable, but have a resilience that is not to be underestimated, also in a digitalized society (or exactly in such societies).

Finally, it is important to simply realize that not all harmful effects can be prevented at the cost of acceptable infringements of freedoms, financial resources, and effort. That requires acceptance that there are limits to what we as humans can do as well as confidence that things will turn out right.

Collaboration

And then the fourth and final option: collaboration. Here, we return to where we started at the beginning of this lecture: the ideas of Louis Brandeis. He was convinced that the late-19th century Darwinist approach of “cut throat competition” would not lead to the optimum outcome for society. His alternative, Regulated Competition, also offered room for collaboration within sectors. Businesses, even competitors, had to be able to jointly develop standards, and exchange information in order to compare and improve their processes. They also had to be able to collaborate in R&D or procurement.

These ideas (and others obviously had similar ideas as well) have been incorporated in European and Dutch competition rules. The idea that, under these rules, any form of collaboration between competitors is forbidden rests on a stubborn misconception. Not every collaboration between competitors will have an appreciable effect on competition. That is the test. Moreover, it’s always an assessment of the costs and the benefits. Competition is not a goal in itself, but rather a means for realizing favorable outcomes on markets. In that context, competition alone is not enough. Regulation and enforcement belong there as well.

Collaboration can result in, for example, economies of scale, as a result of which European alternatives to the Big Tech companies get a chance. Collaborations on the buyer side can also create much-needed countervailing power. That is why ACM encourages collaborations to promote or create alternatives in markets where there is little competition and too high dependence because of a lack of alternatives.

In that context, think of common standards for assessing digital sovereignty. Or the joint procurement or provision of sovereign cloud services, or the development of a new e-wallet. The government can play a key role here as well: it can act as a ‘launching customer’ since it’s a major buyer of digital services. That calls for a different kind of industrial politics than our society has been used to over the past few years.

If there’s any doubt about whether such a collaboration is in line with the rules, please don’t hesitate to contact ACM. In many cases, much more is possible than what people (and lawyers) think. Unfortunately, people still talk about us rather than to us (“We’re not allowed to do that, according to ACM”). That also goes with the role of regulator that Louis Brandeis envisioned.

Don´t get me wrong: a certain degree of dependence on Big Tech will always exist. For an open and internationally oriented society as ours, digital autarky will remain an illusion. However, collaborations can help reduce that dependence, and that in itself is already better than the current situation.

In conclusion

I went from the past to the present, and from the present to four options for the future. Not either or, but all four of them.

With his concept of Regulated Competition, Louis Brandeis showed that we don’t need to make a choice between the benefits of technological and economic progress or the protection of public and individual interests. But he also showed us that those benefits are not automatically reaped by everyone in society. For that to happen, we need to make choices, at the European and at the national level. Choices about what we want to regulate, what we want to prohibit, what should be left alone (laissez-faire), and in what areas we wish to make collaborations possible, or even stimulate them. Those are not easy choices, but they are choices that can be made, and even have to be made.

Our biggest mistake would be not to make a choice at all, and, in doing so, leaving the future of our economy, our democracy, and ultimately our autonomy and human dignity at the mercy of a select clique of powerful companies. Brandeis’s work shows that the economic balance of power is not like laws of nature, and that we as citizens in a liberal democracy have a choice to set the rules. We were able to do that one hundred years ago, and we can still do that today.