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Digital Privacy: The Next Frontier In Antitrust Law
A couple weeks ago, during an unassuming antitrust conference at Oxford University, a German bureaucrat uttered a few words that should send a chill through Silicon Valley. In front of a crowd of nearly 200 competition law experts—including enforcement agents, scholars, and economic policy-makers from the United States and Europe—Andreas Mundt, president of Germany’s antitrust agency, Bundeskartellamt, said he was “deeply convinced privacy is a competition issue.”
It’s a conviction major tech platforms are listening to closely, especially since Mundt’s agency is in the midst of a high-profile investigation into whether Facebook abused its dominance as a social network by forcing customers to agree to unfair terms about the way the company uses their data. Mundt’s words may have sounded mundane, but his implication was anything but: the world’s foremost antitrust regulators were publicly discussing whether they should intervene if a transaction weakens consumer privacy protections, a pervasive concern in the era of big data.
A few years ago, to suggest that enforcement agents should act based on privacy would have be heretical to accepted antitrust dogma, particularly as it’s been practiced in the US. The underlying aim of antitrust regulation is to keep the market humming by promoting competition and limiting barriers to entry (this is why the field is known as competition law outside of the US).
For decades, antitrust philosophy in America, and to some extent in Europe, has been shaped by the Chicago School, a highly influential conservative framework that favored big business. Its proponents argued that intervention was only necessary if a business deal hurt consumer welfare, not, for example, smaller competitors. The scope was narrowed further by measuring consumer welfare primarily by whether people had to pay higher prices.
This anti-interventionist approach has led to consolidation across the board, from healthcare to pharmaceuticals to telecom. But the fixation on price has been a boon for tech platforms, which have mastered the art of making money off of free products. An intellectual shift among antitrust experts could ultimately pose an existential threat to Silicon Valley—especially to the idea that its companies are simply scrappy, innovative upstarts that won out rather than heavyweight incumbents using valuable data troves and network effects to dominate one niche after the other.
For most people, it might still feel hyperbolic to cast tech CEOs as modern-day robber barons or to label Mark Zuckerberg the second-coming of John D. Rockefeller (before the philanthropic rebranding). That’s partly due to the nature of the work. How can software ever be as rapacious as oil refineries or steel? Yet the markets tell a different story.
To get a sense of Silicon Valley’s stupefying power writ large, just glance at a list of the world’s top 10 most valuable companies. In the first quarter of 2017, Apple, Alphabet (Google’s parent company), Microsoft, and Amazon inhabited the top four spots; Facebook sat just a few rungs below, at number eight and has already climbed up to number five. Companies that were near the top of the heap just a few years ago—big pharma, big box chains like Walmart, the “big four” Chinese banks, oil conglomerates, household names like Nestle or General Electric—are glaringly absent from the mix. The world’s most valuable resource is now data, and Silicon Valley has cornered the market on amassing personal information.
This new world order is one of many reasons why antitrust officials are questioning their methods, even if they’re a bit slow to do so. (Even in the EU, as recently as last fall, Margrethe Vestager, the antitrust czar, was still calling Facebook’s terms of service “a gray area” between privacy and competition.)
If competition policy were working, “we wouldn’t have record wealth inequality,” law professor Maurice Stucke says. “We wouldn’t have market power and monopoly profits.” Stucke should know. He’s a former trial attorney for the US Department of Justice’s antitrust division and has published research on algorithmic collusion, big data, and digital cartels.
American antitrust statutes like the Sherman Act are broadly worded and largely centered around competition; they don’t explicitly instruct regulators to account for political realities like income inequality or the effect on wealth creation for small businesses. But the number of new companies started has reached a 40-year low, and profits for some US companies are abnormally high compared to GDP. The cracks in the antitrust establishment are starting to show, said Stucke, and experts are wondering if “the emperor maybe has no clothes.”
“We are living in a world of extreme consolidation and concentration,” such as the rise of technology platforms, says Lina Khan, a fellow with the Open Markets program at New America, a think tank focused on the intersection of policy and technology. “We have seen the effects of 30 years under this one regime, and it has prompted the community to question whether we’ve gone off course.”
The history of antitrust interpretation in the US seems to be guided by correcting the mistakes of the past. When President Reagan came into office, the feeling was that government intervention had exceeded its bounds during the 1970s. That left an opening for Yale law school professor Robert Bork to radically redefine the way statutes like the Sherman Antitrust Act, which first passed in the 1890s, were interpreted. (Yes, that Bork. The guy with the doomed Supreme Court nomination, who helped President Nixon fire the James Comey of his day in 1973.)
Bork took the position that the goal was consumer welfare in an economic sense and “you can’t really find that” in the statute, says Gary Reback, a Silicon Valley antitrust lawyer famous for fighting Microsoft’s monopoly in the 1990s.
The debate about how to police monopolistic practices has also been reinvigorated due to mounting evidence that the status quo has been ineffective. “Even if all you care about is prices or consumer welfare narrowly defined,” Khan says, counterarguments are piling up in studies and white papers, like a recent study which reviewed dozens of mergers permitted by regulators showing and found that prices rose after a merger.
Relying on consumer prices to judge the openness of a market can also be misleading when regulating tech companies. “When more and more services are ‘free,’ you can see how that really renders antitrust feeble,” says Khan. After the rapid expansion in social networking and online search, it’s clear that financial power lies in data, not just price. “The Europeans hit on this,” says Stucke. “Data is the new lingua franca. That is the currency, and [tech platforms] can translate that data into dollars.”
This is evident in the European Union’s intensified scrutiny of how Silicon Valley tech platforms operate. Germany’s antitrust agency is investigating Facebook. The EU conducted an antitrust probe into Amazon’s e-books business deals (the company agreed to change its contract with publishers in May). Days before the Oxford conference, the EU fined Facebook $122 million for sharing data from a billion WhatsApp users with the rest of the company, contrary to promises Facebook made to the EU when it acquired WhatsApp for $19 billion in 2014. (In the announcement Vestager said data-sharing would give Facebook’s online advertising business an unfair advantage.) Days before that, watchdogs in the Netherlands and France slapped Facebook on the wrist for privacy violations.
Not everyone finds the Bork School as constricting. Thomas Leonard, president of the Technology Policy Institute, a conservative think tank based in Washington, D.C., tells WIRED focusing on harm to consumers does leave room for privacy concerns, for example whether a company protects consumer data from theft. Theoretically, “price is a proxy for a whole bunch of attributes,” he says.
Enforcement has been less aggressive in US because here antitrust authorities tend to be skeptical of complaints of competitors. “In Europe, they seem to have more of a ‘big is bad’ ideological perspective, which I think at various points and times we have had in this country too,” says Leonard.
He also argues that the personal data Facebook and Google have collected is not easily replicable. “They’re not successful because they have a lot of data, they have a lot of data because they’re successful,” says Leonard. “That is really the source of their intellectual capital and analytical ability to create value out.” If you discourage that, “then you’re just basically discouraging success.”
The current antitrust debate doesn’t just end with privacy or price, however. Khan says experts are even considering whether the focus should be on consumer welfare. Dominant tech platforms “also affect us as workers, entrepreneurs, and just as citizens,” she explains. In other words, perhaps those disruptive side effects from Silicon Valley’s rise—job loss, misinformation campaigns, inability for young companies to compete—aren’t just inevitable casualties but are changes that could be regulated.
Of course, just because academics are abuzz doesn’t mean it will ever translate into stricter rules for Silicon Valley, particularly within the US. America has been especially reluctant to intervene because of the presumption that tech is a rapidly-changing market fueled on innovation that regulation would only slow down. “It’s becoming increasingly obvious that that view is misguided,” says Khan. “These platforms are so entrenched and have been for awhile.”
The Age of Big Tech
There is no consensus yet on what should replace the Chicago School, but there is a growing acceptance of the fact that Silicon Valley’s standard line of defense—that competition is only a click away—doesn’t hold. On the same panel at Oxford last week, Mundt told the audience, “Sometimes I doubt that [idea].”
Digital competition operates very differently from brick-and-mortar retail stores. “The stickiness of online services is actually quite real,” says Khan. As tech platforms amass more and more data to personally tailor their experience to a consumer, “there is a pretty decent cost to switching.” Consumers who stop using Amazon would lose their purchase history of 10 years. For parents or repeat buyers, that’s not trivial, she says.
What’s more, Khan says, many of these companies have begun “to play an infrastructure-like role in the economy, so a host of other businesses rely on them.” Amazon is a perfect example of this. “One-hundred-plus years ago, if you wanted your goods to get to the market, you had to ride the rails; nowadays, you have to buy Amazon’s rails, be on Amazon’s platform,” Khan says.
Google operates in a similar manner, and Reback argues that much of its growth can be traced to acquisitions. “Google’s rise in many ways was attributable to its business [sense], but also the failure to enforce antitrust against Google,” says Reback, the antitrust lawyer. “They acquired Android; they didn’t build it. They acquired much of their advertising [technology].”
“This not only enabled them to squelch competition, it has enabled them to control markets such that they get very complete profiles on you, me, everybody,” Reback adds. This is where it gets troubling for consumers. Airlines and credit cards companies, for example, have always collected data. “That’s never really disturbed people in the same way. That data was never used to profile you in terms of how you’d vote in an election.”
Speaking of politics, legislators can be influential when determining how antitrust is interpreted, in large part by riling up constituents. On the campaign trail, Donald Trump mentioned blocking the $85 billion AT&T Time Warner merger, giving hope to antitrust activists, but since taking office, he seems to have fallen into a more predictable Republican patterns.
Democrats, however, could pick up this drum and beat it loudly during the next election cycles. “Obviously [the Democrats] have the no power right now,” says Khan, but even since Hillary Clinton’s defeat in the 2016 presidential election, members of her staff have continued to be in touch with antitrust advocates. Khan also pointed to speeches by Senator Elizabeth Warren, like one this year at the Center for American Progress, where Warren said “It is time to do what Teddy Roosevelt did: pick up the antitrust stick again.” It bodes well that these issues will be “a major part, if not a pillar, of the Democratic party, especially if they are thinking of ways to become more populist on economic issues,” says Khan.
With or without regulatory follow-through, though, an antitrust renaissance could hit Silicon Valley where it hurts: the public’s good will. (To get a sense of how important consumer perception is, just consider recent photos of Mark Zuckerberg riding a tractor or posing with farm animals.) Reframing tech platforms as entrenched corporations chips away at the narrative that CEOs like Zuckerberg or Jeff Bezos ascended to the top because of their technological genius, their ability to see the future, and their innovative new ways of doing business.
With an ideological shift, Facebook could look less like benevolent force for connecting the world and more like a $400 billion industrial machine that grew through acquisitions and consolidation, unchecked data-mining, behind-the-scenes lobbying, and suffocation of the very entrepreneurs who look up to their hero, Zuck.
In that light, late capitalism looks an awful lot like the Rockefeller version.