Law in the Internet Society

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BalajiVenkatakrishnanFirstEssay 9 - 18 Nov 2019 - Main.EbenMoglen
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Combatting the Big Data Conundrum using Antitrust Law

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Digitalization and data analytics have transcended the traditional understanding of markets and their regulation. Data has become crucial to gain efficiencies, but has also been used to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with data cultures. This is concerning for two reasons - (1) big data capitalism is dominated by few companies like Facebook and Google, and this could result in the big getting bigger; and (2) legislatures around the world are struggling to devise regulations vis-a-vis data, given its overarching effect on society, and the economy. Despite this, the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust law to regulate the impact of data on not just competition, but also consumers' data rights.
I'm not sure why "Despite this." The paragraph is rich in information, but it does not make its argument clearly.

 In this brief paper, I highlight important instances of such regulation, and argue that regulators must embrace enforcing antitrust law to regulate data. Lastly, given that India's antitrust regime is nascent, I provide some recommendations based on global experiences.
This clarifies that the draft is a sales pitch for a product: "Antitrust law—You need it to regulate your country's part of the global data economy." I think you would be more effective putting it right at the top and then launching into the information about why your solution is needed to solve a problem your information defines.


Global Experiences

Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods. In 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This recognized the possibility of defining data-based markets, but also had some limitations. For instance, it assumed Google and Facebook's data to be substitutable, which is erroneous, as Google would use its data in different ways from Facebook. Additionally, the analysis ignored the consumers’ privacy concerns post-acquisition.

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In the end, this argument requires an existing weak area of law to become strong enough to replace other legal structures that the current government could enact if it wanted to. That would require judges to be willing to construct that regime out of competition law through the rapid evolution of competition doctrine—which not even your European courts, as opposed to government administrative agencies—have done. They would have to do so under the indifferent or hostile pressure of the government, whose administration will not take the courts' positions for them. This is, to say the least, a tall order. The reader might reasonably want to know what's Plan B?

Perhaps the draft was too committed to selling the virtues of antitrust law as a solution to the platform company problem. "Competition law will be an important component of platform company regulation" would be a more open-ended premise that would still have value—as the discussion at my SFLC/CLS conference was intended to show. If your framework question didn't imply such a strong downstream form of argument, your draft's analysis might improve.

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Revision 9r9 - 18 Nov 2019 - 18:18:34 - EbenMoglen
Revision 8r8 - 10 Oct 2019 - 02:58:48 - BalajiVenkatakrishnan
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