Megan Case (University of Maryland School of Law) has posted “Google, Big Data, & Antitrust” (Delaware Journal of Corporate Law (Vol. 46, Issue No. 2)) on SSRN. Here is the abstract:
Google occupies a powerful position within the United States economy, a position which many have begun to consider too powerful. Google’s power is derived almost entirely from how it uses the billions of pieces of information it collects on its users—a collection of information known as big data. Since last October, five separate antitrust lawsuits have been filed against Google by multiple states and the Department of Justice. Several sweeping antitrust reform measures have also been proposed in Congress to target big tech companies.
This Article discusses the unique antitrust challenges posed by companies like Google and argues that those challenges can be addressed without a massive overhaul of antitrust law. In doing so, it builds on recent legal scholarship that advocates for more vigorous antitrust scrutiny of mergers and acquisitions and more aggressive treatment of exclusionary conduct by dominant firms. While this Article echoes such recommendations, it develops an added focus on the manner in which dominant firms use big data to properly diagnose the unique anticompetitive concerns raised by companies like Google. In order to successfully keep antitrust enforcement abreast the challenges of our growing digital economy, antitrust authorities must begin to emphasize the central role big data plays in today’s digital arena. This approach yields an important normative insight: the sweeping legislative reforms proposed under the guise of protecting competition in the digital age could have an opposite and chilling effect on competition and innovation.