Does the EU Right to Data Portability Violate Antitrust Law?
On May 16 I am going to speak on a panel on privacy and antitrust at George Mason Law School. Back in 2007, I testified on one issue concerning privacy and antitrust, how privacy can be a non-price aspect of competition. Now I think I’ve found another way the two fields are related, which as far as I can tell has not received any real analysis to date.
Article 18 of the EU draft privacy Regulation sets forth a new Right of Data Portability: “The data subject shall have the right, where personal data are processed by electronic means and in a structured and commonly used format, to obtain from the controller a copy of data undergoing processing in an electronic and structured format which is commonly used and allows for further use by the data subject.” In the future, the Commission will specific what electronic formats count as “structured and commonly used,” as well technical standards for how the data controller shares the data with the individual data subject.
This Right of Data Portability feels similar to Google’s Data Liberation Front, whose “singular goal is to make it easier for users to move their data in and out of Google products.” It is one time that the Google philosophy of open data flows converges with the EU’s support for individuals’ rights over their data.
I’m wondering, though, whether a mandated right of data portability makes any sense in light of antitrust law. I think antitrust scholars would look at this issue as a vertical restraint, with the two markets being, say, a social network service and a property right for the customer to remove data. Similarly, antitrust scholars could see a tying arrangement, where the (popular) social network service is “tied” to the (unpopular) expense to the consumer in removing data.
Modern antitrust analysis, in both Brussels and DC, has become highly suspicious of government intervention concerning tying and other vertical restraints. Quite strong showings of market power are generally needed for the government to intervene, and the Regulation’s Right of Data Portability would exist generally and not based on that kind of showing of market power.
In the utilitarian calculus of U.S. antitrust law, my instinct is that the Right to Data Portability would be seen as welfare-reducing. I think that would be true under European competition law as well.
In response, a supporter of the Right to Data Portability could say that the right here should trump the utility loss. A Data Liberation supporter could emphasize that the proposal advances what I have called “data empowerment” as well as data protection, and so there is an additional rights-based argument to ignore antitrust law.
These are my initial musings. I welcome comments as I prepare for the May panel.