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privacy, antitrust, Internet


When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level.

To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how it is using that information, to whom it is selling the data, and how it maintains the security of the data. Surveillance of these dominant firms’ practices could also allay fears of venture capitalists and innovators (who are loath to enter online markets knowing that a dominant firm could effectively cut off their air supply on a whim).

Monitoring should do to leading Internet companies what they do to their users each day: systematically study, categorize, and characterize their behavior. Routinely making information available about data collection will help develop the infrastructure and analytics necessary to bring antitrust enforcement into the twenty-first century by promoting rapid understanding of the corporate actions underlying complaints.

Rather than relying on antitrust law to promote the development of rivals to dominant internet firms, we should rely on monitoring of data practices to help authorities regulate dominant firms. Only then can the FTC, DOJ, and other antitrust enforcers assure that companies that occupy such commanding heights in the Internet ecosystem do not treat firms operating in adjacent fields in an anti-competitive manner.

Publication Citation

20 George Mason Law Review 1009 (2013).


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