Thammasat University students interested in marketing, public policy, business, economics, sociology, law, and related subjects may find it useful to participate in a free 14 September Zoom book talk on Breaking Away: How to Regain Control Over Our Data, Privacy, and Autonomy.

The event, on Thursday, 14 September 2023 at 7:30pm Bangkok time, is organized by the Asian Institute of International Financial Law, Faculty of Law, The University of Hong Kong (HKU).

The TU Library collection includes several books about different aspects of data privacy.

The event webpage explains:

Breaking Away sounds a warning call alerting readers that their privacy and autonomy concerns are indeed warranted, and the remedies deserve far greater attention than they have received from our leading policymakers and experts to date. Through the various prisms of economic theory, market data, policy, and law, the book offers a clear and accessible insight into how a few powerful firms – Google, Apple, Facebook (Meta), and Amazon – have used the same anticompetitive playbook and manipulated the current legal regime for their gain at our collective expense.

The speaker will be Professor Maurice Stucke, who teaches law at the The University of Tennessee, Knoxville, the United States of America.

Professor Stucke’s book, Breaking Away: How to Regain Control Over Our Data, Privacy, and Autonomy is available to TU students from the TU Library Interlibrary Loan (ILL) service.

Students are invited to register for the event at this link:

https://hkuems1.hku.hk/hkuems/ec_regform.aspx?guest=Y&UEID=89002

With any questions or for further information, please write to

aiiflhku@hku.hk

In an article published last year in the Notre Dame Law Review and posted on its website, Professor Stucke noted:

Enforcers, policymakers, scholars, and the public are increasingly concerned about Google (Alphabet), Apple, Facebook (Meta), and Amazon. The public sentiment is that a few companies, in possessing so much data, possess too much power. Something is amiss. Ordinarily, we equate monopolies with higher prices. Unlike some pharmaceuticals or local cable monopolies, these data-opolies do not charge consumers exorbitant prices. Most of Google’s and Facebook’s consumer products are ostensibly “free.” Amazon touts how its consumer-first approach benefits us with low prices and superior service. Apple touts its pathbreaking innovation and building “things that make us proud.”1 So, under the conventional antitrust rubric, free or low prices, better quality, and a lot of innovation do not equal monopolization. Yet, the bipartisan concern in Congress, which many competition officials around the globe share, is that these powerful firms have monopoly power. All need to be held accountable, and new tools are needed to rein them in. Why the concern? What exactly are the risks that these dataopolies pose to individuals and society? And more fundamentally, what is the relationship between privacy and competition? These issues are more fully explored in my recent book, Breaking Away: How to Regain Control Over Our Data, Privacy, and Autonomy.

This essay recaps the policymakers’, enforcers’, and scholars’ thinking on the relationship between antitrust and privacy. Currently, the thinking is that improving privacy protection is a necessary, but not sufficient, step to address some of the risks posed by these data-opolies and deter data hoarding, a key source of their power. The policies proposed in Europe, Asia, Australia, and North America as of early 2022 all assume that with more competition, privacy and well-being will be restored. In looking at the reforms proposed to date, policymakers and scholars have not fully addressed several fundamental issues. One issue is whether more competition will necessarily promote our privacy and well-being. Another issue is the policy implications if personal data is nonrivalrous.

This essay summarizes a few key themes on the looming conflict between privacy and competition law, and why the traditional policy responses—define ownership interests, lower transaction costs, and rely on competition—will not necessarily work. […]

So even though the government, behavioral advertisers, and stalkers all derive value from your geolocation data, the welfare optimizing solution is not necessarily to share the data with everyone. Nor is the welfare optimizing solution to encourage competition for our data. The fact that personal data is nonrivalrous does not necessarily point to the optimal policy outcome. It does not suggest that data should be priced at zero. Indeed, pricing data at zero can make us worse off. The fact that data is nonrivalrous does not mean privacy and competition are inherently at odds. Privacy can be an important nonprice component of competition. Competition along this parameter can deliver greater privacy protection (and better privacy technologies). Likewise, privacy policies can promote healthy competition. But at times, privacy and competition will conflict. Moreover, the data-opolies will use privacy as a justification for their anti-competitive behavior, such as cutting off rivals’ access to personal data. One recent example is Google’s announcement that its leading browser Chrome will allow users to block third-party cookies. While Google’s move may seem privacy-friendly, one Republican Congressman noted that Google is using privacy “as a cudgel to beat down the competition.” One can discount the data-opolies’ privacy justifications as pretextual. But, at a broader level, one can see the conflict between privacy protection and competition. If the privacy laws advance a “data minimization” policy, then there will be far less personal data to democratize. The privacy laws will effectively limit the flow of personal data in the first instance (from the user to the initial collector). Market participants will have to expend the cost and time to collect and process the data, which is problematic when this cost exceeds the potential value that could be unlocked from the data. As a result, the privacy law can hinder data philanthropy, the development of machine learning that relies on a significant volume and variety of data, innovation, and competition.

On the other hand, policymakers, in relying too heavily on data openness policies, will promote an economy where we become the commodity—where the ensuing toxic competition is how to extract even more data about us (but not for us) and increase our addiction to their websites and apps. When privacy’s data minimization strategies are in tension with antitrust’s data democratization policies, who should decide these trade-offs, and how? Policymakers, as of early 2022, have not addressed these issues. Instead, they approach the issues circuitously, in promoting one lever (privacy or competition) over another. Overreliance on one lever can tilt the balance between privacy and competition, and leave individuals worse off as a result. What should policymakers do when competition and privacy conflict? Should we encourage the competition over our data when it primarily benefits advertisers by lowering their costs? Here we as a society are confronted with a quantifiable short-term gain (namely the cost-savings to advertisers) with a privacy harm that is often difficult to quantify and whose risks may be less salient and have long-term implications.

Policymakers may claim a win-win—promote both privacy and competition. That is true sometimes but not always. And their choice of policy tools (tools that democratize data in fostering data collection, through multi-homing and interoperability, and subsequent redistribution, through data portability and imposing a duty to deal) can tilt the balance. Thus, we are currently left with a market failure where the traditional policy responses—define ownership interests, lower transaction costs, and rely on competition—will not necessarily work. Moreover, when competition and privacy conflict, at least four traps await policymakers: (i) when in doubt, opt for greater competition (rather than increased privacy protection); (ii) when in doubt, opt for greater privacy over competition; (iii) confusing what is measurable (such as the policies’ impact on advertising rates and consumer pricing) with what is important (such as the individuals’ well-being); and (iv) embracing privacy measures by the data-opolies when they look like tremendous gains for privacy, except when they aren’t (such as Google’s bundling YouTube with its DSP services, and enabling users of the Chrome browser to block third-party cookies). […]

(All images courtesy of Wikimedia Commons)