Big Data, Little Chance of Success: Why Precedent Does not Support Anti-Data Theories of Harm

As the digital economy has matured, “Big Data”— extremely large datasets that require sophisticated tools to analyze — has enabled extraordinary innovation, creating a number of benefits, including free products and greater efficiencies. Precisely because Big Data is such a powerful tool, though, scholars, governments, and litigants have called attention to what they view as its potential to harm both competition and consumers. In this article, we explore the advances enabled by Big Data, its competitive implications, and why applying an expansive interpretation of the antitrust laws regarding single firm conduct to Big Data would be out of step with legal precedent and sound economics.

By Kristen O’Shaughnessy, D. Daniel Sokol, Jaclyn Phillips & Nathan Swire^[1]

I. INTRODUCTION

As the digital economy has matured, “Big Data”— extremely large datasets that require sophisticated tools to analyze^[2] — has enabled extraordinary innovation, creating a number of benefits, including free products and greater efficiencies. Precisely because Big Data is such a powerful tool, though, scholars, governments, and litigants have called attention to what they view as its potential to harm both competition and consumers.^[3]

The debate over the effect of Big Data on competition is occurring amidst renewed interest in Section 2 of the Sherman Act, which governs single-firm monopolistic conduct. States, regulators, and private plaintiffs have brought numerous