Antitrust and Unfair Competition Law

Competition: Fall 2018, Vol 28, No. 1


By Abiel Garcia1

The term "big data" is everywhere these days. Big data is often cited as an emerging issue that competition lawyers need to study and watch for potential competitive misuse. But what exactly is meant by "big data?" And does it warrant unique antitrust attention?

U.S. Department of Justice Deputy Assistant General Nigro recently offered one description of big data as "an imprecise, catch-all term that describes a broad range of ideas related to the collection and commercial use of large quantities of information."2 While big data has no precise definition, this paper will focus on large data sets that track consumer actions and attempt to show that most competition questions raised by "big data" are generally addressed by the current antitrust structure and do not require new rules or frontiers of practice. However, recent comments by government representatives, such as FTC Chairwoman Ramirez, suggest that big data presents new challenges for antitrust law to address: for instance, barriers to entry created solely by mass data collection. In their dystopic view, major technology companies, solely by virtue of their data collection activities, could run afoul of competition laws and be deserving of extreme remedies like forced data sharing. First, this paper will describe how big data is created. Section 2 of this paper will describe some common characteristics of big data and, ultimately, attempt to create a working definition for it. In section 3, the paper will walk through various conduct-based examples involving big data and discuss how current antitrust law is well equipped to handle them.3 Finally, Section 4 will question the premise that data collection per se could be a source of anticompetitive activity, and argue that antitrust laws are not well suited for dealing with companies compiling mass data sets.


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