Proving Amazon Lied To Congress About Self-Dealing Easier Said Than Done

Aside from the difficulty of proving that Amazon intentionally lied and then that its misrepresentations adversely affected Congressional fact-finding, Amazon can afford the best lawyers and lobbyists to dissuade any legislator, no matter how angry about the deception. JL 

Cristiano Lima reports in the Washington Post:

Reporting that the tech giant gave its own products preferential treatment on its search engine and used vendor data to launch copycat goods “directly contradicts” its executives’ past testimony. Lawmakers would need to substantiate claims the company intentionally lied. Another hurdle for lawmakers could be proving that any misrepresentation by Amazon adversely affected Congress’ fact-finding efforts. If they already obtained the information through other means, it could make their complaints moot. “The distinction between misleading and lying marks what would constitute perjury and what would not,”

Lawmakers are threatening to issue a criminal referral against Amazon for potentially misleading or lying to Congress about its business practices — but convincing federal prosecutors to take up and act on the case would be a tall task, legal scholars said.

Members of the House Judiciary Committee’s antitrust panel on Monday said recent reporting that the tech giant gave its own products preferential treatment on its search engine and used vendor data to launch copycat goods “directly contradicts” its executives’ past testimony. 

In 2019, for instance, a top official testified that Amazon does “not use any seller data” to compete with vendors and that its search engine uses the “same criteria” to evaluate which products to show users, regardless of who produces them. Jeff Bezos, then the CEO, testified in 2020 that while Amazon policy prohibits using individual seller data to launch new products, he couldn’t guarantee the rule had never been violated. (Bezos owns The Washington Post.)

Rep. Pramila Jayapal (D-Wash.), who pressed Amazon on the matter in 2019 and joined others in doing so again Monday, said recent reports make clear company leaders lied.

While lawmakers’ latest moves dramatically raise the stakes in the legal standoff with Amazon, it will be hard to convert into tangible action.

Criminal investigations and charges for perjury at the federal level — the worst-case scenario for Amazon — are exceedingly rare, according to Richard Painter, a former White House ethics lawyer under President George W. Bush. 

The Justice Department “adheres to a quite high threshold for opening up investigations of criminal perjury, much less prosecuting,” he told The Technology 202. 

Lawmakers would need to lay out and substantiate claims the company intentionally lied rather than relying on the Justice Department “to do the investigating for Congress,” he added.

Amazon said in a statement Monday that its executives did not mislead the committee and that reporting calling its practices into question was “inaccurate.” But the company declined to say if it will comply with House lawmakers’ request for additional “exculpatory evidence” that they say is needed to stave off a potential federal criminal referral. 

Stuart Green, a professor at Rutgers Law School, said if the company doesn’t bite on lawmakers’ offer to “correct the record,” it could come back to bite it, especially if a referral for a criminal investigation or prosecution has bipartisan backing. 

“If they stick by their guns and all or some of the Republicans joined in the referral, then I would say that … you might see a prosecution, and that would be something to see,” he said.

A bipartisan group of five lawmakers signed onto the letter Monday pressing Amazon CEO Andy Jassy to “corroborate the prior testimony and statements” to Congress, including the top Democrat and Republican of the House’s antitrust panel. Lawmakers also had bipartisan support when they similarly suggested Amazon misled the panel on the same issue last year. 

Painter said one of the reasons the bar for launching a federal investigation is so high is that officials at agencies like the DOJ don’t “want to get involved in a political situation where the company isn't telling Congress what Congress wants to hear.” Bipartisan support could help alleviate those fears. 

Another hurdle for lawmakers could be proving that any misrepresentation or falsehood by Amazon adversely affected Congress’ fact-finding efforts. If they already obtained the information through other means, Green said, it could make their complaints moot.

“It's not like a court proceeding where … a police officer gives false testimony and the result is that some person goes to prison,” he said. 

The biggest question of all may also be one of the simplest: Who knew what, and when?

If lawmakers press the case that one of Amazon’s leaders lied to the committee, they may have to stick the landing on the argument that the person knew what they were saying was wrong and had actual knowledge that they were being intentionally misleading. 

Lawmakers wrote Monday that recent reporting at best “confirms that Amazon’s representatives misled the Committee” and at worst “demonstrates that they may have lied to Congress.”

“The distinction between merely misleading and actually lying marks the distinction between what would constitute perjury and what would not,” Green said. 

On the other hand, while Bezos sidestepped part of the issue last year by saying he couldn't “guarantee” no one at Amazon had broken its policies, the company could have a harder time arguing that given the latest reporting. 

A recent Reuters investigation found that Amazon has engaged in a “systematic campaign of creating knockoff goods and manipulating search results to boost its own product lines.” 

“It certainly does make it harder to prove that he didn't know,” Green said of Bezos.