Ece Ban,DPhil in Law
In 2019, a tech journalist from the US conducted a six-week experiment wherein she lived without using the services of major tech giants – Amazon, Google, Facebook, Microsoft, and Apple. She summarized her experience as nothing less than ‘hellish.’[1] Such detox means no more ‘how to’ videos from YouTube, missing out on your friends’ stories and events posted on your Facebook groups, and being unable to participate in conferences hosted on Teams. And forget the convenience of ordering last-minute gifts from Amazon (if you are lucky enough to hear about the occasion in the first place without the built-in channels of these tech giants). Although you can find a few alternatives to WhatsApp to text your friends, the real challenge lies in finding a friend who uses these other channels. However, the experiment revealed more: blocking these five major tech giants resulted in the obstruction of various apps, cloud services, and IP addresses – plus the millions of websites under the control of these companies, necessitating the replacement of multiple devices. This experiment emphasizes the concentration of digital markets in the hands of a few companies, which has raised concerns among antitrust circles. One may question why having a few tech players controlling our digital activities is problematic, especially considering the countless benefits they have provided as once-garage start-up firms. As Shakespeare stated, ‘It is excellent to have a giant’s strength, but it is tyrannous to use it like a giant.’ [2] In a similar vein, one of the concerns in antitrust discussions revolves around the potential for abuse of power by these tech giants.
It is easy to say that these tech giants know more than your closest friends and family do, and this imposed confident role corresponds with increased privacy concerns. The more gateways to the internet they control, the more opportunities they have to collect data about us. The key threat is that data collection often occurs without us being aware of it and at unprecedented levels. This surveillance follows us beyond our digital activities with the rise of IoT devices and smart appliances. It does not end here, however. The aggressive amounts of data collection and the increased ability of big analytics brought us the promise of a personalized world revolving around us. Personalization may sound appealing, with our funny cat videos readily presented on YouTube and targeted with yoga mat advertisements after booking a class. Yet, personalization also means being subjected to the ad when you are least likely to resist, and charging higher prices for your Uber ride because your battery is low. They know if you are tired, depressed, or excited and use these insights to shape and steer your decision-making process for their own benefit. In other words, in the hands of these giants’ personalization is a tool to exploit our vulnerabilities to extract more surplus from us in terms of money, data, and attention.[3] You may wonder: “If these companies once transitioned from innocent garage startups to giants, won’t a ‘hero’ always come to save us from the hands of a giant?” However, these tech giants, through their control over internet gateways and their utilization of data power and analytics capabilities, possess the ability to closely monitor and effectively employ strategies that exclude both current and potential competitors.
These concerns have prompted calls for increased antitrust scrutiny over the practices of tech giants. These calls have in turn raised a fundamental question: do we possess the necessary tools to intervene and address these concerns effectively? Today we have a different economic reality than that for which antitrust laws are traditionally tailored. For instance, the digital markets have given rise to a new paradigm of power arising from access to extensive data and advanced machine-learning capabilities. Similarly, in this digital world, consumers are not only concerned about high prices – most of the services provided by tech giants are free – but about their privacy and autonomy as well. These new dynamics call for a fresh perspective on antitrust enforcement, challenging us to reevaluate traditional approaches. Considering these factors, my research critically examines the shortcomings of abuse of dominance enforcement and suggests potential amendments to address these shortcomings. It is crucial for regulators to adapt to this new economic reality and ensure that antitrust measures effectively tackle the challenges posed by the immense power of tech giants in the digital age. This way, we can unlock the true potential of technology and prevent giants from using their power tyrannously!
[1] Kashmir Hill, ‘I Cut the ‘Big Five’ Tech Giants From My Life. It Was Hell’ Gizmodo, available at: https://gizmodo.com/i-cut-the-big-five-tech-giants-from-my-life-it-was-hel-1831304194.
[2] William Shakespeare, Measure for Measure
[3] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future At The New Frontier of Power (2019) 255.