Antitrust

1 0 With regards to particular priorities, FTC Chairman Joseph Simons has articulated interest in enforcement of unilateral conduct by dominant firms in industries characterized by network effects. Simons has expressly stated that "some of the significant high-tech platforms" might be appropriate subjects for the antitrust authorities, and he has also indicated that the FTC is interested in "mergers of high- tech platforms and nascent competitors." Simons' recent statements and the evident focus of the agency on the digital economy — as demonstrated by both the public hearings and the formation of the Technology Task Force — suggest that scrutiny of the major digital platforms may already be under way at the FTC, and that enforcement action may be forthcoming. Not unlike in the EU, the FTC is also considering the intersection between the privacy, consumer protection and competition implications of data collection. As FTC Commissioner Rebecca Kelly Slaughter recently stated, "[t]echnological innovation is not only affecting our traditional work in both competition and consumer protection, it is blurring the line between our two traditionally distinct missions." Relatedly, FTC Commissioner Rohit Chopra has cautioned that the ability of digital marketplace operators to engage in the mass collection ('data surveillance') and analysis of data presents issues related to collection practices, property rights, the use of predictive analytics and monetization of harvested data. Potential abuse of data by the major digital platforms is therefore an area that the FTC appears to be scrutinizing, as evidenced by the agency's March 2018 announcement of a consumer protection investigation into Facebook's privacy practices. Given the FTC's dual missions, it is uniquely positioned to regulate at the intersection of consumer protection and competition. U.S. DEPARTMENT OF JUSTICE ANTITRUST DIVISION The other U.S. antitrust agency, the U.S. Department of Justice Antitrust Division (DOJ or Antitrust Division), appears to be less actively examining innovative enforcement action in this area. Based on recent statements from senior officials, the DOJ appears to be adhering to traditional antitrust enforcement principles and existing analytical frameworks and antitrust tools in considering digital markets and platforms. Makan Delrahim, Assistant Attorney General of the Antitrust Division, has suggested that regulators should carefully apply the antitrust laws to enforcement of big platforms and regulation of data, indicating that new tools and a new approach are not necessary. Comments from other senior Antitrust Division officials have similarly expressed skepticism with regards to expanding the antitrust laws to regulate the digital economy. A significant divergence in approach between U.S. and EU regulators is apparent in the treatment of dominant firms. As noted above, the topic of 'big data' has received significant attention in the last few years, with calls for scrutiny of the competition and privacy-related implications of the ability of the FANGs to collect and analyze mass amounts of information. At the DOJ, Delrahim has cautioned against categorical treatment of companies that accumulate large amounts of data: "[r]ecognizing the benefits of data, some commentators have argued in favor of requiring dominant firms to share data with FOREWORD F T C C H A I R M A N J O S E P H S I M O N S H A S A R T I C U L A T E D I N T E R E S T I N E N F O R C E M E N T O F U N I L A T E R A L C O N D U C T B Y D O M I N A N T F I R M S I N I N D U S T R I E S C H A R A C T E R I Z E D B Y N E T W O R K E F F E C T S 01 Antitrust as a Tool to Regulate the FANG Companies: Differing Approaches in the United States and in Europe

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