Wednesday, January 27, 2016

Does Antitrust Have a Role to Play in Regulating Big Data?

D. Daniel Sokol (University of Florida) and Roisin Comerford (Wilson Sonsini) ask Does Antitrust Have a Role to Play in Regulating Big Data?

ABSTRACT: The collection of user data online has seen enormous growth in recent years. Consumers have benefitted from the growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the debate, and a closer inspection of existing scholarly works reveals a dearth of thorough study of the issue. Commentators generally split into two camps: one in favor of more proactive antitrust enforcement in the Big Data realm, and one opposing such intervention, considering antitrust inappropriate for regulation of Big Data. The academic case for the former has not, as yet, been fully developed, and is relatively light at present. Meanwhile, policy-focused work by academics practitioners in this arena suggests that antitrust intervention in Big Data would be premature and misguided, especially considering the myriad pro-competitive benefits offered by Big Data.

In this chapter, we review the scholarly work on the implications of Big Data on competition, and consider the potential role of antitrust in the regulation of Big Data. Part I provides an overview of current, scarce, academic literature specifically addressing the role of antitrust in Big Data issues. Parts II and III delve into the policy issues surrounding Big Data and whether it poses a risk to competition that warrants antitrust intervention. Part II details the ways in which Big Data may prove pro-competitive while Part III reviews and critiques the suggested potential harms to competition from Big Data. Part IV discusses the suitability of antitrust as the institutional choice for Big Data issues, and Part V concludes that, at present, antitrust is ill suited as the institutional choice. This conclusion is further born by the fact that thus far there have been no cases in the United States or Europe that have found Big Data itself to be a basis for a theory of harm on antitrust grounds for mergers or conduct cases. Further, the scholarly case for such harm has not yet been adequately established.

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