FTC Hearings on Competition & Consumer Protection in the 21st Century, FTC Docket No. FTC-2018-0100, Comments of the International Center for Law & Economics, Topic 5: Are There Policy Recommendations That Would Facilitate Competition in Markets Involving Data or Personal or Commercial Information That the FTC Should Consider?

In this comment, we primarily address the fifth topic raised by the Commission (“Are there policy recommendations that would facilitate competition in markets involving data or personal or commercial information that the FTC should consider?”). In short, we argue that the advent of data-enabled markets does not support the calls for a significant expansion of antitrust tools and antitrust enforcement being made in its name. Contrary to what has sometimes been claimed, data does not present unique (and uniquely large) anticompetitive risks. Data is not irrelevant, of course, but it is just one amongst a plethora of factors that enforcement authorities and courts should consider when they analyze firms’ behavior.