Dnes on Browser Tying and Data Privacy Innovation

Stephen Dnes (Northeastern University) has posted “Browser Tying and Data Privacy Innovation” on SSRN. Here is the abstract:

This paper explores the role of the browser in relation to competition for advertising. It explores the important role of the browser in collecting and transmitting data to servers via data storage and transmission functions, the mechanisms by which these data flows are enabled, and some of the competing uses for which these data flows are used on the server side. This reveals the need for server-side processing of some information.

In this context, profound concerns are raised that technological tying will imminently undermine competition and innovation in digital markets via browser-based restrictions. Indeed, there are proposals for de facto vertical integration of significant browser and server functionality under proposals from Apple and Google, which will strongly favour vertically integrated solutions (the so-called “walled gardens”). Both proposals are restrictive, but Google’s appear to go even further than Apple in its tying proposals, without justification.

The paper concludes with some possible remedies to prevent anti-competitive technological tying of browser and server functionality. Indeed, there is an acute need to use established competition law tools to prevent anti-competitive foreclosure from locking down the browser.

Woodcock on Antimonopolism as a Symptom of American Political Dysfunction

Ramsi Woodcock (University of Kentucky College of Law) has posted “Antimonopolism as a Symptom of American Political Dysfunction” on SSRN. Here is the abstract:

Contemporary American interest in using antitrust law to address wealth inequality is a symptom of American political dysfunction rather than a reflection of any intellectual advance regarding the sources of inequality. Indeed, both the original American progressives of a century ago, as well as Thomas Piketty, whose work sparked contemporary intellectual interest in inequality, agree that inequality’s source is scarcity, rather than monopoly, and so will persist even in perfectly competitive markets. The only real solution is taxation, not a potentially destructive campaign of breakup. There are two causes of contemporary American antimonopolism. The first is American anti-statism, which has closed off tax policy as a viable political solution to inequality, forcing scholars and activists to seek a second- or third-best workaround in antitrust policy. The second is the American press, which is actively promoting antimonopolism as a way of fighting back against Google and Facebook, two companies that have badly outcompeted the press for advertising dollars in recent years. Given these idiosyncratic roots of contemporary American antimonopolism, other jurisdictions seeking to address inequality may have little to gain from following the American example, particularly if taxation remains a viable policy option for them.

Yoo on Net Neutrality, Digital Platforms, and Privacy

Christopher S. Yoo (University of Pennsylvania Law School) has posted “The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy” (Journal of Free Speech Law, Vol. 1, P. 463, 2021) on SSRN. Here is the abstract:

Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial discretion over whom to carry or host. This gives putative common carriers and public accommodations substantial control over their First Amendment status. The jurisprudence on privacy regulation, quasi-common carriers, non-common carriage services, and public accommodations confirms that the First Amendment protections they enjoy are substantial.

Fisher & Streinz on Confronting Data Inequality

Angelina Fisher (NYU School of Law – Guarini Global Law & Tech) & Thomas Streinz (NYU School of Law – Guarini Global Law & Tech) have posted “Confronting Data Inequality” on SSRN. Here is the abstract:

Data conveys significant social, economic, and political power. Unequal control over data — a pervasive form of digital inequality — is a problem for economic development, human agency, and collective self-determination that needs to be addressed. This paper takes some steps in this direction by analyzing the extent to which law facilitates unequal control over data and by suggesting ways in which legal interventions might lead to more equal control over data. By unequal control over data, we not only mean having or not having data, but also having or not having power over deciding what becomes and what does not become data. We call this the power to datafy. We argue that data inequality is in turn a function of unequal control over the infrastructures that generate, shape, process, store, transfer, and use data. Existing law often regulates data as an object to be transferred, protected, and shared and is not always attuned to the salience of infrastructural control over data. While there are no easy solutions to the variegated causes and consequences of data inequality, we suggest that retaining flexibility to experiment with different approaches, reclaiming infrastructural control, systematically demanding enhanced transparency, pooling of data and bargaining power, and differentiated and conditional access to data mechanisms may help in confronting data inequality more effectively going forward.

Farinha on Modifications on the Digital Content or Digital Service by the Trader in the Directive (EU) 2019/770

Martim Farinha (Nova School of Law) has posted “Modifications on the Digital Content or Digital Service by the Trader in the Directive (EU) 2019/770” on SSRN. Here is the abstract:

In 2019, the EU approved a package of legislation aimed at modernizing many aspects of consumer law, to face the challenges of the Digital Single Market. Among them, the Directive (EU) 2019/770 takes the task of creating a legal framework to ensure the protection of consumers in contracts on the supply of digital services and content – addressing conformity requirements, the remedies available to consumers and the subject of modifications made on those services and content by the trader. The provisions on the latter will be scrutinized and developed, with the goal of fully comprehending the legal framework on modifications and attempting to answer the questions surrounding it. What is a modification; when is the trader obliged to provide them; what are the instances and conditions required for discretionary modifications beyond the scope of maintaining conformity; how transparent should the trader be regarding these practices; and what rights and remedies do consumers possess? Finally, two real examples of T&C regarding modifications will be analyzed considering this Directive and its future transposition.