'The Impulse to Condemn the Strange: Assessing Big Data in Antitrust' by Alexander Krzepicki, Joshua D. Wright and John M. Yun in (2020) 2(2)
CPI Antitrust Chronicle 16
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An emerging refrain in antitrust dialog is that the accumulation and use of big data is a unique and particularly troublesome entry barrier, worthy of antitrust scrutiny. Yet, it seems that both the concept of big data and entry barriers continue to be used in a highly casual and superficial manner. In this article, we argue that big data should properly be considered a two-stage process. In stage one, a firm collects the data. In stage two, a firm transforms the data into some benefit that ultimately increases profitability. We also discuss whether big data should be considered an entry barrier, which, in a broad and abstract sense, measures the relative difficulty of obtaining necessary inputs to production.
'Concealed Data Practices and Competition Law: Why Privacy Matters' (UNSW Law Research Paper No. 19-53, 2019) by Katharine Kemp
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This paper argues that the degradation of consumer data privacy in the digital environment causes objective detriment to consumers and undermines the competitive process, and should therefore be of critical concern to competition law. Consumers are frequently unaware of the extent to which their personal data is collected, the purposes for which it is used, and the extent to which it is disclosed to others, particularly in digital markets. Researchers and regulators have observed that this is not simply a matter of consumer apathy, but that firms often understate and obscure their actual data practices, preventing consumers from making informed choices. This paper defines, and provides examples of, a set of “concealed data practices”. These concealed data practices create objective costs and detriments for consumers, making them more susceptible to criminal activity, discrimination, exclusion, manipulation and humiliation. This paper argues that these practices are not only problematic in terms of consumer protection and privacy regulation. Concealed data practices should also be of concern to competition policy due to their role in chilling competition on privacy; preserving substantial market power by means other than superior efficiency; and deepening information asymmetries and imbalances in bargaining power. The paper concludes by outlining four ways in which these factors should be taken into account by competition authorities.
