The collection and storage of user data has grown exponentially over the past several years.[1] The ubiquitous collection of data from multiple source points, such as websites and smartphones, combined with the sinking costs of data storage have allowed numerous corporations to amass large swaths of consumer data.[2] As the technology concerning data has grown, so too have companies’ abilities to analyze consumers’ raw data and use it to make inferences and predictions about consumer behavior and world events.[3] While this data undeniably has the potential to increase efficiency and boost productivity, anti-trust experts are beginning to question whether this so called “big data” might have anti-competitive effects that require regulation.[4]
The oft-used term “Big Data” has a somewhat nebulous and evolving definition.[5] A 2011 study by McKinsey Global Institute defined Big Data as “datasets whose size is beyond the ability of typical database software tools to capture, store, manage, and analyze.”[6] This definition is intentionally subjective in order to encompass the fact that the Big Data of today is dramatically different than what fell under that definition when the study was issued.[7] The ever-increasing collection, analysis, and use of consumer data by companies has prompted scholars and regulators to question whether the amassing of Big Data could have anti-competitive effects, and whether existing anti-trust laws are sufficient to address these concerns.[8] Law professor Maurice Stucke and antitrust attorney Allen Grunes argue in their joint policy paper that “allowing companies to control large amounts of data raises barriers to entry for potential rivals that lack enough data to develop competitive products.”[9] Proponents of this view further argue that because current antitrust laws focus on pricing models for goods and services, they may not adequately address the non-price effects data may have on a company’s products or services.[10]
The European Union has already taken note of these anti-trust concerns.[11] In an interview earlier this year, Margrethe Vestager, the European commissioner for competition, explained that large data sets are extremely valuable and that “they can foreclose the market – they can give the parties that have them immense business opportunities that are not available to others.”[12] She also noted that EU regulators will be assessing the effect of Big Data when evaluating mergers.[13] Although the EU has not blocked any mergers yet, the commission did evaluate potential anti-competitive effects of the aggregation of data in Facebook’s acquisition of WhatsApp and the merger of Microsoft Inc. with LinkedIn Inc.[14] Even the notably more laissez-faire U.S. Federal Trade Commission required the divestiture of a key database before allowing the 2010 acquisition of Quality Education Data by Dun & Bradstreet.[15]
Critics of these concerns argue that the mere possession of large amounts of data is insufficient to deter competition in their respective markets.[16] In arguing that data-rich companies are in fact a source of innovation rather than a threat, Joe Kennedy of the Information Technology & Innovation Foundation, notes that “the use of data is non-rivalrous, [meaning]one company’s possession of data does not come at the expense of another’s.”[17] Economists Anja Lambert and Catherine Tucker noted that there is a “vibrant market” for data collection, and that new technology continues to make it easier and more affordable for new entrants to amass the data they need.[18] They also noted that, even if large amounts of data are needed to successfully enter a new market, such an obstacle does not necessarily represent an unfair competitive advantage for those companies already in possession of such data, observing that many industries have high entry costs.[19] These critics recognize that data-driven companies, like all other companies, can use their data for anti-competitive efforts, but that existing laws are flexible enough to allow regulators to challenge that behavior.[20]
Proponents of antitrust regulation also argue that Big Data may pose a threat to innovation.[21] The concern is that when a market leader accumulates data, that entity gains the ability and incentive to eliminate challengers by preventing smaller rivals from accumulating data.[22] Stucke and Grunes argue that when this occurs, or when dominant firms acquire “small data” market entrants, a source of innovation is removed from the market and competition suffers.[23] Critics of this argument posit that this type of activity is precisely contemplated by existing regulations.[24]
Though certain regulators, such as the EU Commission, have indicated an evolving understanding of the anticompetitive implications of Big Data, reviews thus far have been under existing antitrust legal regimes.[25] But Big Data continues to grow bigger by the day, and so do the sophistication of its analyses and its implications on corporate behavior. So, while some antitrust regulators and scholars still defend current antitrust laws as sufficient, the day may come when Big Data simply outgrows the current legal framework.
[1] Edith Ramirez, Chairwoman, Fed. Trade Comm’n, Keynote Remarks at the Fordham Competition Law Institute 43rd Annual Conference on International Antitrust Law and Policy: Deconstructing the Antritrust Implications of Big Data (Sept. 22, 2016), www.ftc.gov/system/files/documents/public_ statements/1000913/ramirez_fordham_speech_2016.pdf.
[2] Id.
[3] Id.
[4] See generally, D. Daniel Sokol & Roisin Comerford, Antitrust and Regulating Big Data, 23 Geo. Mason L. Rev. 1129, 1143 (Sept. 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2834611; See also, Joe Kennedy, The Myth of Data Monopoly: Why Antitrust Concerns About Data Are Overblown, Info. Tech. & Innovation Fund (Mar. 2017), http://www2.itif.org/2017-data-competition.pdf..
[5] See generally, Gil Press, 12 Big Data Definitions: What’s Yours?, Forbes (Sept. 3, 2014, 8:01 AM), https://www.forbes.com/sites/gilpress/2014/09/03/12-big-data-definitions-whats-yours/#51155ea213ae.
[6] Id.
[7] Id.
[8] See Ramirez, supra note 1; See also, Kennedy, supra note 4.
[9] Joe Kennedy, Should Antitrust Regulators Stop Companies From Collecting So Much Data?, Harv. Bus. Rev. (Apr. 17, 2017), https://hbr.org/2017/04/should-antitrust-regulators-stop-companies-from-collecting-so-much-data.
[10] Id.
[11] Natalia Drozdiak, EU Asks: Does Control of ‘Big Data’ Kill Competition?, Wall Street J. (Jan. 2, 2018, 9:34 AM), https://www.wsj.com/articles/eu-competition-chief-tracks-how-companies-use-big-data-1514889000.
[12] Id.
[13] Id.
[14] Lesli C. Esposito & Brian J. Boyle, Big Data May Become Big Antitrust Concern, DLA Piper (Sept. 19, 2017), https://www.dlapiper.com/en/us/insights/publications/2017/09/big-data/.
[15] Ramirez, supra note 1.
[16] See e.g., Kennedy, supra note 7.
[17] Kennedy, supra note 4.
[18] See Kennedy, supra note 7.
[19] Id.
[20] Id.
[21] Sokol & Comerford, supra note 4.
[22] Id.
[23] Id.
[24] See e.g., U.S. Dep’t of Justice & F.T.C., Horizontal Merger Guidelines § 6.4 (2010) (“Competition often spurs firms to innovate. The Agencies may consider whether a merger is likely to diminish innovation competition by encouraging the merged firm to curtail its innovative efforts below the level that would prevail in the absence of the merger.”).
[25] See e.g., Ramirez, supra note 1; See also, Drozdiak, supra note 11.
