‘High’ Threshold for Regulating Big Tech’s Data: Justice Dept.

Tech companies such as Alphabet Inc.'s Google or Facebook Inc. aren’t likely to face U.S. antitrust enforcement actions based on the large amounts of user data they amass, a Justice Department official said Aug. 20.

“The threshold’s pretty high,” said DOJ Deputy Assistant Attorney General Barry Nigro during a question-and-answer session at a Technology Policy Institute conference in Aspen, Colo.

Data on customers is part of a company’s assets, he said. U.S. antitrust officials will take those assets into account when they’re looking at mergers, but it’s much harder to make a case stick for dominance in data.

“If there are two companies that have valuable sets of data, we have to think of how combining it can lessen competition or decrease entry areas,” he said.

When it comes to a company’s conduct on data, “even if we have concerns, we would have to go to a judge and explain why,” he said.

Nigro’s comments are among several at the conference that show a divergence between the U.S. and the EU on enforcement of tech companies. The EU’s competition commission has gone after Google in several antitrust complaints, most recently fining the search engine giant $5 billion for favoring its own apps on its Android phone. The U.S. opted not to take action.

Antitrust enforcers globally aren’t unified regarding technology, Deputy Assistant Attorney General Roger Alford said earlier in the day. “There are different views of abuse of dominance,” as well as differences in how various regulators investigate and enforce antitrust laws, he said.

Rival Entry

Big data and large networks can actually help competition, Nigro said. “To the extent that having a broader reach makes it more valuable, that’s a good thing,” he said. “That makes the product or the service something I’m more likely to use.”

U.S. enforcers will intervene when tech platforms are so big that they’re squeezing out competition, Nigro added. “It’s a question of whether the firms that are very popular — if they are using that popularity to make it more difficult to allow other firms to enter the market,” he said.

The same goes for data collection. It’s a good thing if it makes a company more competitive, Nigro said.

“The economic bargain that’s made is you can use this service or this product in exchange for sharing of data,” he said. “To the extent that a firm is collecting data, you don’t want to undermine the incentive to compete for those eyeballs.

“It’s something that you want to encourage,” Nigro said. “You want to encourage more competition, not less.”

To contact the reporter on this story: Victoria Graham in Aspen, Colo., at vgraham@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com