CDT Beginning an Exploration of Competition, Data, and Power

Written by Avery Gardiner

In my first three weeks at CDT, the largest antitrust civil case in US history went to trial (and almost immediately settled), Facebook was accused of cutting off access to data to hobble rivals (via leaked documents), the Dutch competition authorities initiated an investigation into Apple’s app store conduct, and senators from both parties threatened to charge big tech with antitrust violations.

I have no doubt my new role as CDT’s Senior Fellow for Competition, Data & Power will be a busy one.

My goal is to bring some sense to the complex and contentious debates about how competition law applies to technology, and what competition policy should be when it considers powerful tech firms with strong market positions. In the past year, we’ve seen an entrenchment in two camps in this debate. One camp believes that technology companies provide free, innovative services that delight consumers, and thus are not an antitrust concern The other camp points to high market shares and few rivals for the most successful companies in search, online sales, digital ads, and smartphone operating systems, and posits that competition has necessarily been stifled.

There are smart, experienced lawyers and technologists on each side, but they’re often talking past each other. Our plan at CDT is to unearth the elements of truth in both camps. We’ll do that by talking to companies, academics, journalists, government enforcers, and industry watchers. We’ll focus on facts. We’ll look at how customers are affected, not only on basic price competition, but also by looking carefully and analytically at concerns about squelching innovation, leveraging market power, and locking in the status quo. We’ll start with the basic premise that antitrust law is flexible enough to address this sprawling landscape of growing companies while recognizing that the traditional pace of competition law cases — stretching over years — doesn’t work well in this rapidly-changing space.

As CDT’s resident competition law expert, I bring experience as a government enforcer and in private practice, plus as an in-house competition lawyer for a tech company. I’ve represented big tech companies and their smaller rivals in antitrust matters. And if my first three weeks at CDT are a proxy of what’s to come, I have some exciting work ahead of me.

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