Unpacking Data Portability

Data portability has become a hot topic in competition law. Although some commentators have suggested that data portability represents low hanging fruit compared with more complex remedies such as interoperability, the debate about how to implement any such mandate, presumably under the essential facilities doctrine, remains underdeveloped. Key issues that remain unresolved include the impact of the distinction between structure and unstructured data on essentiality, the significance of regulatory regimes that can provide access to data, the tension between portability and privacy, and the difficulties associated with ordering, provisioning, compatibility, and standardization of data. Closer examination of these challenges reveals that data portability is not a panacea and that enforcement officials will have engage in the type of nuanced, fact-specific determinations that characterize classic antitrust analysis and the implicit limitations of the essential facilities doctrine.

By Christopher S. Yoo¹

I. INTRODUCTION

Data portability has become a hot topic in competition law. Now well established as a matter of privacy law by the enactment of the California Consumer Protection Act (“CCPA”) and the European Union’s General Data Protection Directive (“GDPR”), legislators and enforcement officials around the world have shown increasing interest in data portability as a competition law remedy. It was endorsed by recent high-profile reports issued by expert