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The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework

CPI Antitrust Chronicle, May 2015

11 Pages Posted: 14 Jun 2015  

Geoffrey A. Manne

International Center for Law & Economics (ICLE)

Ben Sperry

International Center for Law & Economics (ICLE)

Date Written: May 29, 2015

Abstract

Increasingly, people use the internet to connect with one another, access information, and purchase products and services. Along with the growth in the online marketplace have come concerns, as well, particularly regarding both the privacy of personal information as well as competition issues surrounding this and other data.

While concerns about privacy and data are not unique to the internet ecosystem, they are in some ways heightened due to the ubiquitous nature of information sharing online. While much of the sharing is voluntary, a group of scholars and activists have argued that several powerful online companies have overstepped their bounds in gathering and using data from internet users. These privacy advocates have pushed the U.S. Federal Trade Commission (“FTC”) and regulators in Europe to incorporate privacy concerns into antitrust analysis.

Here, we focus on the two most-developed theories of data-related antitrust harm: first, that privacy should be considered in mergers and other antitrust contexts as a non-price factor of competition; and second, that the collection and use of data can be used to facilitate anticompetitive price discrimination. In addition, we analyze the underlying conception of data as a barrier to entry that is a necessary precondition for supporting either proposed theory of harm. We argue that there are no plausible harms to competition arising from either non-price effects or price discrimination due to data collection online and that there is no data barrier to entry preventing effective competition.

Keywords: Competition Law, Privacy, Antitrust, Big Data, Data-driven, Mergers, Monopolization

JEL Classification: K21, L40, L41

Suggested Citation

Manne, Geoffrey A. and Sperry, Ben, The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework (May 29, 2015). CPI Antitrust Chronicle, May 2015. Available at SSRN: https://ssrn.com/abstract=2617685

Geoffrey Manne

International Center for Law & Economics (ICLE) ( email )

3333 NE Sandy Blvd
Suite 207
Portland, OR Oregon 97232
United States
503-770-0076 (Phone)

HOME PAGE: http://www.laweconcenter.org

Raymond Sperry (Contact Author)

International Center for Law & Economics (ICLE) ( email )

110 Maryland Ave, NE
Suite 407
Washington, DC District of Columbia 20002
United States
8147245659 (Phone)
8147245659 (Fax)

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