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Illustration: Aïda Amer/Axios

Regulators on both sides of the Atlantic are beginning to probe whether the biggest tech companies' handling of consumer data represents an unfair form of competition.

Why it matters: Consumer data is the fuel of the digital economy and the key to tech giants' market leverage. It is also challenging antitrust regulators’ ability to investigate competition issues, because today’s antitrust laws don’t specifically address data dynamics.

Driving the news: Justice Department antitrust chief Makan Delrahim, in a speech Friday at an antitrust conference in Cambridge, Mass., said that the way tech firms amass data could raise concerns about competition.

  • The DOJ is conducting an antitrust review of big tech companies, and Delrahim told the crowd that includes studying the role data plays in market power.

Context: The amount of data Google will collect in its $2.1 billion acquisition of Fitbit is already drawing the attention of privacy advocates and competition enforcers.

  • European Union antitrust chief Margrethe Vestager said deals that involve combining user data will get a close look because of their potential to hamper competition or create privacy issues, in response to questions about the Google deal at the Web Summit in Lisbon last week, according to Bloomberg.
  • Marc Rotenberg, president of the Electronic Privacy Information Center, said the organization will oppose the deal in part because of privacy issues. (Google has said it will not use Fitbit data for ads.)
  • EPIC is also urging lawmakers to press the FTC on data collection in merger reviews ahead of a House Judiciary antitrust subcommittee hearing Wednesday with Delrahim and FTC Chairman Joe Simons.
  • In a statement for Axios, subcommittee chairman David Cicilline (D-R.I.) said, "The immense amount of data that dominant firms have collected has given them a tremendous advantage over potential competitors whose ability to attract investment and compete effectively often depends on their access to data."

Yes, but: Fitbit is not the dominant player in the wearables health device market — that honor goes to the Apple Watch.

  • Google and Fitbit also do not closely compete in the market, so Google's entry doesn't really eliminate competition between the two, but instead could pose a stronger competitive threat to Apple.

More broadly, experts question whether antitrust laws are the right tool to remedy concerns about growing data collection.

  • "The enforcers see these companies getting big, they see them accumulating lots of personal data and they don't have a statutory framework to analyze or investigate that in the privacy realm, so they are borrowing from the antitrust realm, and it’s a bad fit," said Joel Mitnick, an antitrust lawyer with Cadwalader, Wickersham & Taft.
"The only thing you can say in the antitrust realm in regard to companies’ increasing possession of data is 'big is bad,' and 'big is bad' is a disreputable antitrust principle and has been for decades."
— Joel Mitnick
  • In Europe, Vestager, who now has expanded regulatory powers, may impose new rules on tech companies' data use, per a Reuters report.
  • “If we want to define the market, to set out what’s acceptable and what isn’t, then what we need is not more competition enforcement. We need regulation," she said, according to the report.
  • The EU's General Data Protection Regulation includes a hefty fine for privacy violations to create an incentive structure around privacy that would be as punitive as competition violations.

Meanwhile, Congress is looking at new data portability legislation as a way to boost competition in the tech industry by allowing users to take information like friends lists from one platform to another.

  • Democratic Sens. Mark Warner (Va.) and Richard Blumenthal (Conn.), and Republican Sen. Josh Hawley (Mo.) introduced a bill last month that would require social media companies to provide a way for customers to move their personal information to another platform.
  • Rules requiring phone companies to allow customers to keep their number when switching providers are credited with increasing competition among wireless carriers.
  • But that approach might be a tougher fit for personal information on digital platforms, where there's no standard format of exchange.

Go deeper

Dion Rabouin, author of Markets
17 mins ago - Economy & Business

2021's expected earnings blowout begins

JPMorgan CEO Jamie Dimon. Photo: Mark Kauzlarich/Bloomberg via Getty Images

First-quarter earnings so far have been very strong, outpacing even the rosy expectations from Wall Street and that's a trend that's expected to continue for all of 2021. S&P 500 companies are on pace for one of the best quarters of positive earnings surprises on record, according to FactSet.

Why it matters: The results show that not only has the earnings recession ended for U.S. companies, but firms are performing better than expected and the economy may be justifying all the hype.

17 mins ago - Science

NASA's Mars helicopter takes flight as first aircraft piloted on another planet

Ingenuity on the surface of Mars, filmed by NASA's Perseverance rover. Photo: NASA Jet Propulsion Laboratory

NASA successfully piloted the Ingenuity Mars helicopter for its first experimental flight on Monday, briefly hopping the aircraft as NASA's Perseverance rover collected data.

Why it matters: Ingenuity's short flight marks the first time a human-built aircraft has flown on a world other than Earth, opening the door to new means of exploring planets far from our own.

All U.S. adults now eligible for COVID-19 vaccine

Healthcare workers getting COVID-19 vaccines on Dec. 16, 2020 in Portland, Oregon. Photo: Paula Bronstein/Getty Images

All 50 U.S. states, plus Washington, D.C. and Puerto Rico, have made U.S. adults over the age of 16 eligible for COVID-19 vaccines, meeting President Biden's April 19 deadline.

Why it matters: The landmark speaks to the increased pace of the national vaccination campaign, but will increase pressure on the federal government, states and pharmaceutical companies to provide adequate vaccine supply and logistics.