Page 30 - November 2019 BarJournal

CYBERSECURITY, DATA PRIVACY
FEATURE & EMERGING TECHNOLOGIES

COULD THE USE OF

BIG DATA LEAD TO

ANTI-TRUST VIOLATIONS?

BY MARGARET RUF

ig data has been a hot topic in source of innovation rather than a threat and businesses? And does the scope and scale
competition law around the that one company’s possession of data does of the data matter for the assessment of
globe for several years now. It not come at the expense of another’s. market power?
has been on the radar at the In the U.S., the Federal Trade Commission Not all collected data has the same value.
B state and national level in the (FTC) is responsible for enforcing privacy, Raw data that cannot be processed, and thus
United States as of late and is also being consumer protection, and anti-trust policy. cannot be immediately monetized, clearly
given significant attention by the European The agency has been holding a series of has a lower value. Thus, access to even a
Union in the context of how best to shape hearings to determine whether broad-based very large amount of data may not provide
competition policy in the digital age. changes in the economy, evolving business a company with market power, if they don’t
The collection and storage of user practices, new technologies, and international have the know-how or technologies needed
data has grown substantially over the developments might require adjustments to to use it. Anti-trust regulators will need to
past several years. The ability to gather competition and consumer protection law, consider not only how data is collected, but
data across multiple source points, such enforcement priorities, and policy. Coming up also how it is used, and controlled. Data sets
as websites and smartphones, combined with new guidelines for how the country’s anti- can be highly differentiated and non-price
with the lower cost of data storage have trust laws apply to tech giants has become one factors of competition, such as quality and
allowed corporations to accumulate large of the agency’s top priorities. While the head innovation, are also important to consider.
quantities of consumer data. And new of the DOJ’s Antitrust Division has expressed Current anti-trust laws focus primarily on
technologies are providing companies confidence that existing anti-trust laws can pricing models for goods and services, and
with the ability to more easily analyze address any competition issues raised by big this approach may not be sufficient to address
consumers’ raw data and use it to make data, the FTC is taking a more open-minded the non-price effects data may have on a
inferences and predictions about behavior stance and working systematically to construct company’s products or services. Regulators
and preferences. While this information its own view. At the center of this assessment will need to account for how companies
has the potential to increase efficiency and is a series of public hearings collectively titled compete using data as a product or input,
boost productivity, anti-trust experts are “Hearings on Competition and Consumer or as a tool for making decisions. This may
beginning to question whether this “big Protection in the 21st Century.” present additional complexity if the tools for
data” might have anticompetitive effects The FTC is seeking to determine making decisions are proprietary or subject
and whether existing anti-trust laws are whether the competition tools currently to intellectual property protection.
sufficient to address these concerns. available to regulators are sufficient to On 7 February 2019, the German
Federal and state regulators are increasingly properly analyze the effects of big data Bundeskartellamt (FCO) issued a
focused on whether big data could be a on future competition. Some of the key groundbreaking order requiring Facebook
barrier to entry, inhibit innovation, or enable questions include: Do existing big tech to end its practice of merging data from
large firms to hinder competition. The federal companies have a distinct data advantage different company-owned services and
government is currently taking a closer look or could new tech companies easily acquire outside sources without prior user consent.
at companies such as Facebook, Google, the same data? Is the data in question It was one of the first major anti-trust
Amazon, and Apple to determine whether compiled in a way that makes it unique? Is enforcement actions involving big data and
these leading technology companies are, in it difficult or costly to replicate, or are there privacy. The FCO ruled that Facebook was
fact, stifling competition. Critics of these other barriers to replication? Is there data exploiting consumers by requiring them to
concerns argue that the mere possession of which can substitute for the data collected agree to data collection and its use without
large amounts of data is insufficient to deter by the company? Is the data alone of fully informed consent, since Facebook
competition in their respective markets. They value or does it need to be combined with requires users to agree to data collection in
argue that data-rich companies are in fact a analytics to make the information useful to order to have an account. The ruling declared
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