Briefing on Big Data, Privacy, and Antitrust

Program Description: Increasingly, there is a call for competition authorities to take account of firms’ collection and use consumer data—conduct that has been the primary province of consumer protection—when reviewing mergers or conduct. For example, although the Facebook-WhatsApp, Google-Nest, and Oracle-Datalogix mergers raised no traditional antitrust concerns, some argued for a new competition analysis that would take into account the abilities of the combined entities to collect and utilize consumer data. Indeed, a consortium of public interest groups recently asked the FTC to take a closer look at “increasing concentration” in the “big data digital marketplace.” Further, several commentators urged the FTC to examine privacy-related issues during its investigation into Google’s search practices. At the same time, it’s not at all clear that antitrust can or should accommodate these new non-competition concerns. Critics of conflating antitrust and privacy analysis contend that the use of big data enhances competition by improving service and facilitating entry. What’s more, antitrust analysis traditionally has focused on markets for goods and services that are sold to consumers, not on internally-used resources like data.

Would consumers be better served with the continued divorcement of privacy and competition concerns? Or should modern antitrust be more accommodating to privacy concerns in the era of big data? The LEC had a morning of lively discussion on this topic. FTC Commissioner Maureen Ohlhausen set the stage by discussing her forthcoming Antitrust Law Journal article, “Competition, Consumer Protection and The Right [Approach] To Privacy.” A panel discussion on big data and antitrust, which included some of the leading thinkers on the subject, followed.

Welcome & Keynote Speaker

The Honorable Maureen K. Ohlhausen
Commissioner, Federal Trade Commission


Panel Discussion

Allen P. Grunes
Founder, The Konkurrenz Group; Data Competition Institute

Andres Lerner
Executive Vice President, Compass Lexecon

Nathan Newman
Director, Data Justice

Darren S. Tucker
Partner, Morgan Lewis

Moderator: James C. Cooper
Director, Research & Policy, Law & Economics Center