Page 31 - November 2019 BarJournal

CYBERSECURITY, DATA PRIVACY
& EMERGING TECHNOLOGIES FEATURE

that Facebook should no longer be allowed
of non-Facebook data to their Facebook CONNECT WITH US
to force its users to agree to the practically
unrestricted collection and assignment

user accounts, the combination of which
substantially contributes to Facebook’s ability
to build unique databases for each individual
user and thereby gain market power.
This groundbreaking decision has
triggered a wide-ranging debate on the
relationship between competition and data
protection law. The FCO’s theory is that
Facebook’s dominance is what allows it to #MyCMBA #MeetMeAtTheBar
impose contractual terms on users’ that
require them to allow Facebook to track
them everywhere. This decision is currently
under appeal. In 2007, when the FTC reviewed the data that its competitors need to do business,
In the EU, the first in-depth probe acquisition of DoubleClick by Google and then this could raise concerns that anti-trust
of the power of data came with the examined the data issues in the context of authorities will need to address.
European Commission’s investigation of the online advertising market, it concluded In short, it is not clear yet whether existing
Apple’s proposed acquisition of Shazam that the evidence failed to show that the laws are sufficient to provide regulators with
Entertainment. Shazam is a popular app used accessibility to Google of any additional the tools needed to challenge data-driven
to identify a song. The use of the app is often data would likely enable it to exercise market behavior. And, though certain
brief and many of its users are anonymous. market power. The FTC found that the regulators, such as the EU Commission,
The Commission was concerned that Apple, combined dataset did not constitute the have indicated an evolving understanding of
by combining its data with Shazam, might essential input needed to create a successful the anticompetitive implications of big data,
gain a competitive advantage over rivals. online advertising product and that several reviews thus far have all been under existing
The Commission concluded that Shazam’s competitors had similar access to their own anti-trust legal regimes. However, as big data
app was not unique and that rival streaming unique data stores. But this does not rule continues to grow, and the sophistication of
services would still have the opportunity to out the possibility that the agency might in its analyses and its implications on corporate
access and use similar databases. The message the future find that the returns of scale that behavior expand, the day may come when the
from this case is clear, regulators will need to the large tech companies benefit from in issues surrounding big data simply outgrow
keep in mind what kind of data the companies performing data analysis create anti-trust the current legal framework.
are collecting or acquiring, how unique it concerns and that certain insights from
is, whether it can be easily replicated, and machine learning might only be possible
whether it can be used to shut out rivals. with the kind of vast data sets that they have
It is still uncertain how the United compiled. This phenomenon could give those Margaret (Marne) Ruf focuses
States will address issues regarding big with more data a competitive advantage, not her practice in the areas of Data
data and competition. U.S. anti-trust only with respect to price and output, but also Privacy and Technology Law.
enforcement agencies have not yet made any with respect to innovation in data analytics Margaret provides guidance to
determinations on the issue of whether a set which could translate into improved products clients on a wide range of
of data is competitively significant enough to or services. However, even if large amounts of regulatory compliance issues including
cause an anti-trust violation. However, it is data are needed to successfully enter a new matters related to the EU’s General Data
a topic that is getting attention. While U.S. market, such an obstacle does not necessarily Protection Regulation (GDPR), the California
anti-trust regulators have to date said that represent an unfair competitive advantage Consumer Privacy Act (CCPA), California’s
privacy alone cannot be a reason for blocking for those companies already in possession of Proposition 65, HIPPA, the FDA, and the
a merger deal, they have not ruled out the such data, since many industries have high Foreign Corrupt Practices Act. Margaret’s
idea that the consolidation of big data could costs of entry. experience also includes significant work in
theoretically be a competition problem. In It is clear that privacy and market information security and intellectual property
fact, earlier this year the Judiciary Committee competition, once seen as distinctly separate and trade secret protection. Margaret is the
announced an anti-trust investigation around areas of enforcement, are now intersecting sole in-house counsel for Jenne, Inc. a business
large tech companies, the Federal Trade more frequently. Regulators are becoming technology distributor and Adjunct Professor
Commission is also currently investigating increasingly aware that data sets are valuable at Cleveland-Marshall College of Law. She
Amazon and Facebook, and the Justice assets needed for business activity. And if, has been a CMBA member since 2018. She
Department has acquired authority to review through anticompetitive market conduct or can be reached at (216) 215-2236 or
Apple and Google. merger, a company can obtain a monopoly on margarete.ruf@gmail.com.
NOVEMBER 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 31