Antitrust, data and consumer privacy will take center stage at new FTC hearings

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The Federal Trade Commission (FTC) announced yesterday it will hold public hearings on “whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.”

The hearings are being presented as part of a broad re-examination of the agency’s “near- and long-term law enforcement and policy agenda.” On the surface, this is appropriate and timely. Yet this also seems to me partly a way revisit Google antitrust questions that the FTC initially dismissed in 2013. I’m speculating, but that seems to be part of the not-so-subtle subtext.

Below are the some of the issues the FTC says it wants to examine:

• The state of antitrust and consumer protection law and enforcement.
• Competition and consumer protection issues in communication, information and media technology networks.
• Identification and measurement of market power and entry barriers, and the evaluation of collusive, exclusionary, or predatory conduct  . . . in markets featuring “platform” businesses (read: Google, Facebook).
• Intersection between privacy, big data, and competition.
• Consumer welfare implications associated with the use of algorithmic decision tools, artificial intelligence, and predictive analytics.

Traditionally, a Republican administration would be less aggressive about antitrust enforcement. But this administration is no conventional Republican administration. The Department of Justice unsuccessfully sought to block the AT&T acquisition of Time Warner, some speculated, as a punishment for CNN’s negative coverage of the president. CNN is a division of Time Warner.

Google and Facebook are also seen by many conservatives as biased against conservative positions. So politics may also be somewhere in the background. Beyond this, Google critics argued that the FTC’s 2013 decision not to pursue a formal antitrust action against the company was premature and mistaken.

Since the FTC’s decision in 2013, Europe has aggressively taken on the mantle of antitrust enforcer. In 2017, it imposed a €2.4 billion (now $2.8 billion) fine on the company, and reports suggest another antitrust fine is imminent. Other actions against Google are in the EU pipeline.

Clearly, the scope of the hearings extends well beyond potential Google antitrust questions and also implicates Facebook, as well as the entire industry, in topics such as privacy and data usage. I believe it’s generally appropriate for the agency to be asking many of these questions. Hopefully, politics aren’t a motivating factor.

Public comments ahead of the hearings are being accepted through August 20. The hearings themselves will begin in September “and are expected to continue through January 2019.” All the proceedings will be streamed online as well.