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Antitrust

Once Characterized as an Antitrust Strategy, Data Portability May Not Be the Competition Remedy Many Believe

Jericho Casper

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Photo of Peter Swire courtesy Georgia Tech

October 6, 2020 — As technological advances allow for more data to be generated on consumers, the public has become more attuned to the need for national data privacy legislation.

Yet there is a countervailing trend: Data portability as possible antitrust remedy against dominant tech platforms.

On Monday, former Clinton Administration privacy czar Peter Swire said that data portability mandates threaten privacy without offering competition benefits.

“Opening up data would create issues,” said Swire, who is now professor of law and ethics at the Georgia Institute of Technology. “Open up data reserves the wrong way and you’ll create huge privacy problems.”

He was speaking at a virtual meeting of the Regulatory Transparency Project, an effort of the conservative Federalist Society.

The discussion takes place in the context of American legislators considering data privacy proposals, some of which include data portability legislation.

Data portability is the ability to move data among different computing environments. Portability legislation requires common technical standards to facilitate the transfer of data from one data controller to another, promoting interoperability.

During the panel, experts affirmed that data portability law can be crucial to protect consumers and maintain a democratic internet.

“Most of the big data controllers, are already providing portability as a feature of their service as a consequence of having to comply with the California Consumer Privacy Act and the General Data Protection Regulation,” said Gabriela Zanfir-Fortuna, senior counsel at Future of Privacy Forum. “Microsoft was one of the first to declare portability compliance.”

According to Zanfir-Fortuna, the right to portability enhances consumer welfare, as it allows individuals to obtain a copy of their data and use it for whatever purpose they see fit.

Another potential effect of portability legislation is increased competition, as innovation may result from getting data once held in walled gardens into the hands of new individuals.  Many competition agencies and legislatures are considering interoperability mandates to increase competition.

Congress is set to release a report with recommendations for reducing the market power of online platforms, panelists said.

While there are obvious consumer benefits to data portability, Swire emphasized getting the right data flows open and the right ones closed is crucial.

Further, he said there is no evidence that data portability mandates are a remedy to competition.

Swire said data portability legislation may reduce business incentives and could entrench incumbents by making it difficult for smaller competitors to modernize their products.

Antitrust

Former and Current FTC Commissioners Laud Efforts At Greater Resources For Antitrust Cases

Samuel Triginelli

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Screenshot of FTC Commissioner Noah Philips on C-SPAN in November 2018

March 17, 2021 – A new antitrust bill by Sen. Amy Klobuchar, D-Minn, is receiving high praise from current and former commissioners of the Federal Trade Commission for its focus on enhancing resources required to tackle competition issues.

“I think we could use more money still,” Noah Phillips, commissioner on the FTC, said at the Information Technology and Innovation Foundation conference on Tuesday. “The agencies could do more with more resources, and that goes without saying. There are hard decisions that we have to make with the limited resources that we have.”

William Kovacic, former FTC chairman, reacted to the bill by noting that the debate has effectively shifted from what agency should do the work to how they do it.

“The neglected questions of implementation are starting to receive the attention they deserve, and one of them is resources,” Kovacic said. “When I look at competition authorities around the world, there is an epidemic failure to match commitments with the means necessary to carry out the task in question.”

The FTC in the last year has brought more cases than it ever has since 2001, Phillips said.

“This is a bit of delusion that all of our countries engage in,” Kovacic said. “We have the highest aspirations, the boldest goals, but when it comes to paying for it, we don’t want to do that; we want to drive and take off the lot.”

He related antitrust enforcement’s strength to the net amount of resources that have to be increased to perform existing functions capably. “It is not simply competition,” Kovacic added. “If you benchmark the FTC resources devoted to data protection privacy, we have a decidedly inadequate allocation,” and that is not the FTC’s doing but those are legislative choices, he said.

Screenshot from ITIF event on Tuesday

For the FTC to be a genuinely full-fledged national data protection regulator for privacy, it would have to be double-to-three times the agency’s resources right now, he said.

More resources will enable the agency to carry out its mandate in a more capable way, he said. The essence of success in so many matters is maintaining continuity of staff at a high-level with high-quality.

Phillips, for his part, said part of the funding will go to hiring economists, experts and increasing salaries.

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Antitrust

House Committee Hears of Big Tech’s Alleged Anticompetitive Behavior in New Hearing

Samuel Triginelli

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Photo of House Antitrust Subcommittee Chairman David Cicilline at the Thursday hearing

WASHINGTON, March 2, 2021 – A House committee on Thursday heard of the need for strengthened antitrust measures to stem the influence of big technology companies, which are alleged to have increased its stranglehold on data on the internet.

The committee heard of Google’s and Facebook’s overwhelming control of the digital ad market; Amazon’s alleged anticompetitive practice of demanding small businesses that sell on its platform provide its proprietary information so it can make its own products; and Apple using its position as one of two app store platforms to extract taxes from competitors like Spotify and other news apps.

This is the first in a series of hearings held by the House Judiciary Antitrust Subcommittee to consider legislative proposals to address the rise and abuse of market power online and to modernize the antitrust laws.

On Thursday, the committee played host to antitrust experts and affected businesses for the hearing titled “Reviving Competition,” which was intended to address market power and big tech’s role as gatekeeper online.

The committee also heard about recent actions by the tech giants to silence speech online. Since early October 2020, according to the testimony, Google’s YouTube platform has been deleting numerous conservative channels; Facebook and Twitter have been shutting down pages, including former President Donald Trump’s; and Amazon kicked the controversial social media app Parler off its web hosting service.

Google and Apple blocked the app from their app stores.

Witnesses recommended the government strengthen enforcement agencies so they have more teeth and reform how merger cases are viewed.

Antitrust gatekeepers work to promote competition between powerful and smaller digital companies, and innovative connectivity competitors should be able to compete at the same level with big tech, said Charlotte Slaiman, competition policy director at Public Knowledge.

That would involve creating a level playing field where larger players cannot leverage their own platform to one-up competitors, said Hal Singer, managing director of Econ One.

Sharing those concerns, Eric Gunderson, chief executive officer of Mapbox, said that American competitiveness and innovation are at risk with these giants controlling the sector. Antitrust reform needs to be focused on allowing other companies to be able to compete in a level playing field.

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Media Ownership

Pandemic Isn’t Death Knell Of Theaters, Says Lionsgate Vice Chairman

Derek Shumway

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Screenshot from the webinar

February 24, 2021 – Lionsgate Vice Chairman Michael Burns said Tuesday he thinks theaters will be packed again once the pandemic ends, speaking at a New America event on the future of entertainment.

Suggesting the pandemic will not impair traditional theaters amid the rise in streaming adoption at home, Burns said the growing portfolio of films to feature in theaters under his studio will ensure traditional movie viewing doesn’t go away.

He noted that Lionsgate is associated with about 20 Tyler Perry movies, which will attract people to theaters. He also said a new program based on the The New York Times’ telling of America’s history with slavery, called 1619, will also draw viewers back.

Burns expressed optimism in a returning moviegoing population and cited that in the past, African Americans made up 5 percent of the movie going population. African Americans also make up 13 percent of the U.S. population. But over the last few years and before the pandemic began, they have made up about 20 percent of the movie going population, he said. This trend is in line with Hispanics, he said, and it gives hope to the entire industry that not even the pandemic can unseat the traditional movie theater.

He said he also hopes the older generation is ready to head back to the theaters, especially as people, young and old, develop pandemic fatigue and especially as vaccines continue rolling out.

Burns turned away doubt about his prediction by pointing to China’s recent New Year’s holiday box office performance the previous weekend, which enjoyed record-breaking box office revenues of $1.206 billion, demonstrating that the country’s film market has recovered from the COVID-19 pandemic.

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