Using the Portability and Other Required Transfers Impact Assessment (“PORT-IA”) in Antitrust Law

Data portability is attracting attention, especially due to recent portability laws in Europe and California, and the hope that it can reduce the market power of digital platforms. This article discusses the potential pro-competitive and other benefits of new data portability requirements, including for lock-in effects, network effects, and barriers to entry. There are significant risks and costs from mandating portability, including privacy and cybersecurity risks if individuals’ personal data is not carefully protected. The discussion applies the framework of the Portability and Other Required Transfers Impact Assessment (“PORT-IA”) to antitrust law. The PORT-IA provides a structured set of relevant questions, to assist legislators, regulators, enforcement officials, and others to evaluate whether proposed mandatory data sharing is likely to be net beneficial. The article concludes with analysis of how the PORT-IA may appropriately be included in merger review, enforcement discretion, fashioning of remedies and other aspects of antitrust law.

By Peter Swire & John Snyder¹

I. INTRODUCTION

This edition of the CPI Antitrust Chronicle reflects growing public attention to the issue of data portability.

Three key trends contribute to this new attention: (1) an individual right to data portability has recently come into effect in Europe and California, with federal legislation an increasing possibility; (2) there are intense public debates about whether and