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

Abstract

Four years have passed since the Cambridge Analytica Scandal, and scrutiny of Big Tech based on antitrust and anticompetitive behavior grounds has only grown. But neither the courts nor Congress have produced meaningful regulation—although not for lack of trying. In essence, antitrust law enforcement agencies like the United States Department of Justice and the Federal Trade Commission have failed to regulate Big Tech firms like Google because: (1) their actions frame target firms in the most narrow relevant market possible, instead of using the more accurate relevant market, data aggregation; and (2) before enforcement agencies can properly enforce antitrust law, Congress must amend the law to reinvigorate the goals of antitrust and to ensure consumers can understand the cost of Big Tech product usage. Although the Internet Age has ushered in many useful innovations, the American people are dissatisfied with the conduct of data aggregating firms and the government. Over fifty-five percent of Americans now think major technology companies should be regulated more, believe these firms have too much power and influence in the economy, and cite competition as the justification for restricting even the growth of technology companies that follow current law. Roughly six in ten Americans say they do not think it is possible to go through daily life without having data collected about them by companies. Sixty-nine percent of Americans do not feel confident that data-collecting companies will use customers’ data in ways that people would feel comfortable with and seventy-five percent of Americans are not confident that government will hold companies accountable when they misuse data.14 What is more, the opinions of Americans are well supported, as 2021 set the record for data breaches, impacting nearly 294 million people. The crisis of confidence in private business and government is overwhelmingly clear, perhaps acting as the main driver to recent Congressional debate around antitrust reform in the technology sector.