Thread by @doctorow

In "The New Antitrust/Data Privacy Law Interface," @TempleLaw's Erika M Douglas presents a fascinating look at the tensions between privacy and competition.

yalelawjournal.org/forum/the-new-…

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If you'd like an unrolled version of this thread to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

pluralistic.net/2021/08/24/ill…

It's only fitting that Douglas published her paper in the @YaleJREG, as that's the same journal that kickstarted the modern antitrust revolution when it published @linakhanFTC's "Amazon's Antitrust Paradox," while she was a law student.

yalelawjournal.org/note/amazons-a…

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Douglas rightly points out that there are many ways in which competition and privacy are in tension with one another (and sometimes, they're in out-and-out conflict).

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Take the fight over Google's war on third-party cookie-tracking. Google is a vertically integrated monopolist that dominates browsing, search, ads, tracking, and (to a lesser extent) display ads.

eff.org/deeplinks/2021…

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Google has taken (and proposed) aggressive steps that would prevent third parties from tracking you as you use the internet. Ad-tech bottom-feeders call this anticompetitive and argue that Google isn't interested in defending your privacy - it's defending its turf.

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They're right! Google doesn't want to defend you FROM GOOGLE. It wants to defend you from everyone ELSE. Google wants to spy on you all the time. Even Google execs in charge of location services can't figure out how to opt out of location tracking.

pluralistic.net/2021/06/01/you…

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It's a brazen version of #ConsentTheater: "Sure, you ticked eleven boxes telling us not to record or mine your location data, but you missed the one we put in a locked file-drawer in a disused lavatory with a sign reading BEWARE OF THE LEOPARD."

onezero.medium.com/consent-theate…

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But just because Google #privacywashes its anitcompetitive conduct, it doesn't necessarily follow that antitrust and privacy aren't compatible with one another.

eff.org/deeplinks/2021…

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The key to reconciling antitrust with privacy is in a foundational antitrust text: Ida M Tarbell's 1904 classic of muckraking journalism, the HISTORY OF THE STANDARD OIL COMPANY, which led directly to the downfall of John D Rockefeller's empire.

marker.medium.com/illegitimate-g…

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Tarbell - a self-trained journalist, the first woman to achieve a biology degree in the US, and a remarkable writer and speaker - introduces a vital concept at the end of volume two of the HISTORY: the idea of "illegitimate greatness."

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Tarbell starts by laying out all the ways in which Rockefeller was a genuinely amazing oil baron - the innovations he was responsible for in both technology and organization, and how his genius led to better, cheaper sources of energy for all.

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This genius she calls Rockefeller's "legitimate greatness." But, she says, Rockefeller also had "illegitimate greatness." Rockefeller had an incredible talent for corrupting the political process.

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Earlier in the HISTORY, Tarbell documents an Ohio state senator who'd sponsored legislation unfavorable to Standard Oil, who suddenly resigned his seat and moved to California, where he had a makework job with a fat salary in a Standard subsidiary.

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Rockefeller was also really great at corrupt acts of intimidation. Over and over, the workers attempting to complete pipelines that competed with Standard's lines were set upon by goons wielding railroad spikes, who beat their brains in.

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Rockefeller's genius for corruption and intimidation was the match of his genius for oil production, and Tarbell urges the reader (and lawmakers) to understand the distinction.

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We want competition in areas of legitimate greatness - improved energy security for all, provided by a broad-based industry that had room for individuals to express their own genius by starting their own firms that competed with Standard Oil.

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But we DON'T want competition in "sending railroad-spike wielding goons to maim competitors' workers" or "bribing politicians who want to regulate your company to relocate to another state and retire from politics."

We want to BAN that conduct, not make it more efficient.

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Illegitimate/legitimate greatness is key to resolving privacy/antitrust tension. Take the UK Competition and Markets Authority's report on ad-tech concentration. It's stunning, 480 pages' worth of investigation into how Googbook rig the ad market.

gov.uk/cma-cases/onli…

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One area the report homes in on is "attribution," Googbook's name for the practice of spying on you after you see an ad, to determine whether the ad worked. Googbook track you across the web, track your physical location, and your financial transactions to do attribution.

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Googbook are able to do this in part because they have vertical monopolies that extend surveillance tendrils into apps (via SDKs), websites (via analytics, Like buttons and free fonts), and across their own vast platforms.

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Attribution also relies on Googbook having huge cash reserves (from their monopoly pricing), which they use to buy our transaction data from scumbag brokers. Smaller ad-tech companies can't afford this.

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Advertisers REALLY value attribution, so it's a major competitive advantage for the Googbook duopoly. Even if Googbook were forced to end their illegal price-fixing, market-rigging and predatory mergers, advertisers would still pay a premium for Googbook ads.

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The CMA is right to identify attribution as a source of anticompetitive advantage, but because they don't practice the legitimate/illegitimate greatness split, they make an absolutely AWFUL recommendation.

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They propose giving everyone a government-issued ad-tech tracking ID so that smaller companies can spy on us the way Googbook do, which would create competition in attribution "services."

No, really.

pluralistic.net/2021/06/01/you…

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This is the crux of the privacy/antitrust tension: failures to distinguish between legitimate/illegitimate greatness, lead to competition in things that simply shouldn't exist. We don't want efficient, high-productivity human rights abuses, we want NO human rights abuses.

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With this distinction in hand, we can better understand the other privacy/antitrust tensions that Douglas discusses, such as the #GDPR, Europe's landmark privacy law, which effectively wiped out the entire European ad-tech industry, leaving Googbook to rule unchallenged.

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The firms the GDPR extinguished were engaged in the worst kind of surveillance. Unlike Googbook, who play a long game, these bottom-feeders and also-rans had only one play: spy on us, get rich, and get out. They colored even further outside the lines than Googbook did.

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Their sins were easier to detect and their size made them easier to prosecute. Googbook have been underprosecuted (thanks to under-resourced EU enforcers), but thanks to the GDPR's private right of action, NGOs like @NOYBeu are able to go after them.

pluralistic.net/2021/06/16/ins…

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The fact that the GDPR extinguished competition in commercial surveillance doesn't put it in tension with antitrust, because antitrust's goal is the promotion competition in legitimate greatness, and the prevention the exercise of illegitimate greatness.

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Indeed, privacy and antitrust can serve as force-mulitpliers for one another, as is the case with interoperability mandates, another area Douglas explores. Douglas observes that data-portability rules have not led to improvements in competition.

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It's true. Letting people take their Google or Facebook data with them when they leave the service is a nice baseline to have, but on it's own, it doesn't accomplish much if there isn't anywhere to take your data to.

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But data-portability is where interop should START, not end. The US #ACCESSAct contemplates forms of "real-time interoperability" that would let you leave Facebook without having to cut ties with the people who stay - community, family and customers.

eff.org/deeplinks/2021…

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Real-time interop is a counter to the much-ballyhooed "network effects" that drive scale at the tech platforms (this is when a service improves when new users sign up), by reducing the services' "switching costs" (what you give up when you leave).

eff.org/deeplinks/2021…

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Even the ACCESS Act barely scratches the surface of how interop promotes legitimate greatness AND our right to technological self-determination. There is a whole universe of ways to plug new digital products and services into existing ones to loosen corporate control.

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Naturally, all this interop raises serious privacy concerns - which is why interop works best as a competition remedy if it is paired with strong privacy law, so democratically accountable law (not corporate edict) sets the limits on interop.

eff.org/wp/interoperab…

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The legitimate/illegitimate greatness split is how we can distinguish between privacywashing and real privacy concerns. When Doordash used privacy as an excuse to hide the value of deliveries from its workers, that was privacywashing:

pluralistic.net/2021/08/07/hr-…

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But when Doordash objected to NYC's misguided plan to force it to share its customer data with third parties, that was genuine privacy-preserving. Interop that promotes labor rights is good. Interop that promotes privacy invasion is bad.

eff.org/deeplinks/2021…

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Douglas is right to point out that privacy law is immature and can be hijacked to defend all kinds of odious practices. as Apple has done in declaring itself to be championing privacy while nonconsensually installing spyware on its customers' phones:

eff.org/deeplinks/2021…

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But here's another place where interop - a competition tool - can act as a hedge against bad privacy practices. Apple is only able to spy on its customers because they can't modify the OS and cloud apps to encrypt their data beyond Apple's ability to peer into it.

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Just the threat of interop can stay companies' hands when they contemplate privacy-invasive actions. When switching away from a company's products is easy, the company has to take great care not to piss off its customers, because they can simply walk away.

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The corollary of this is that the higher the switching costs are, the worse a company can treat its customers, including on the privacy axis. That's all over the amended FTC Facebook complaint.

ftc.gov/system/files/d…

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The FTC quotes numerous internal Facebook comms in which execs and engineers admit that they want to raise switching costs so they can abuse their users without risking their flight - the harder it is to leave, the bigger the shit-sandwich the company can force you to eat.

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Douglas's paper is very timely. As she points out, antitrust is changing, and tensions with other areas of law will only mount. Everything is up for grabs. Douglas describes the settled detente between IP law and competition policy, but this might not stay settled.

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Biden's SMASHING July 6 Antitrust Executive Order explicitly calls for the elimination of the norm that IP enforcement be exempted from antitrust scrutiny.

eff.org/deeplinks/2021…

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It's an acknowledgement that in the 21st Century, "IP" has come to mean, "Any law or policy I can invoke to control the conduct of my critics, competitors and customers."

locusmag.com/2020/09/cory-d…

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We CAN resolve the tension between antitrust and other kinds of law, including privacy and IP, so long as we frame all areas of law as serving the goal of self-determination and fairness, and not corporate hegemony.

eof/