Themes and Takeaways from the FTC Hearings on the Intersection of Big Data, Privacy, and Competition

November 2018

Themes and Takeaways from the FTC Hearings on the Intersection of Big Data, Privacy, and Competition By Elena Kamenir (Orrick, Herrington & Sutcliffe)¹

On November 6-8, 2018, the U.S. FTC held hearings on privacy, big data, and competition as a part of its Hearings on Competition and Consumer Protection in the 21st Century series.² The hearings covered a wide array of issues, including whether privacy concerns affect competition analysis, how to evaluate conduct and mergers involving big data, which remedies are appropriate to address antitrust harm involving certain datasets, and the policy recommendations and implications surrounding these issues. This article first summarizes common issues discussed on the panels. Although there was much consensus among panelists, differences emerged regarding the intersection of competition, privacy, and big data. This article concludes by outlining three issues on which antitrust and consumer protection practitioners will continue to focus on and debate.

Common Issues Discussed During the Hearings 

1. What Makes Data Valuable?

One of the threshold questions when analyzing the impact of big data is whether the data is valuable. Panelists generally agreed that the value of data is highly dependent on how the data will be used and analyzed. Florian Zettelmeyer identified three categories exemplifying how data analytics can be useful. Data analytics can: (1) enable business initiatives; (2) enable idea generation; an