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Grandpa Sherman Did Not See Google Coming: Evolutions in Antitrust to Regulate Data Aggregating Firms

By Michael J.K.M. Kinane. Full Text.

There is a crisis of confidence regarding the regulation of Google and other Big Tech firms. In 2021, over fifty-five percent of Americans believed that under-regulation of Big Tech has resulted in these companies having too much economic influence. Seventy-five percent are not confident that government will hold companies accountable when they misuse data.

This Note examines Google as the poster child for Big Tech’s use of data aggregation as an anticompetitive tactic. Thanks to Google’s vast social data collected across many platforms, it has near-perfect market intelligence. This intelligence enables profitable predictions in markets currently occupied by Google and adjacent markets Google has yet to enter. Antitrust enforcers and scholars have examined Google’s anticompetitive behavior in narrowed markets like digital search advertising and mobile phone app stores. Yet this kind of analysis does not fully encapsulate Google’s business model, and thus fails to provide impactful remedies that would address the fact that Google’s harm to consumers comes from anticompetitive conduct in multiple submarkets, ranging from search advertising to smartphone operating systems.

To combat this crisis of confidence, antitrust enforcers should cite the data aggregation market as the relevant market in litigation against Google. Additionally, Congress should expand the consumer welfare standard to include non-monetary harms and recognize that conduct that obscures a consumer’s ability to compare one firm’s product features against another’s is anticompetitive.