From a New York Times article about Andreas Mundt, Germany’s lead antitrust regulator:
As American regulators and lawmakers intensify their scrutiny of Big Tech, there is a lot of discussion about whether or how they could accuse the companies of violating antitrust law. Often, regulators look to whether a company is causing consumer harm — a standard that can be hard to prove when a service is free.The response from Mr. Mundt is simple. The only way to take on Facebook and some of its peers is to attack what they value most: data.
He argues that the companies are so dominant in their core businesses that consumers, if they want to search the internet or be on social media, have no choice but to share their personal data. The data then strengthens the tech companies’ position over rivals even more — and therefore is anticompetitive, Mr. Mundt says.
Robert Bork would have us all believe that 1) monopolies are fine so long as they do not harm consumers, and 2) the only sort of harm a monopoly can cause to consumers is to raise the prices those consumers have to pay. By this logic, technology platforms like Facebook, Google, and Amazon do not cause any harm to consumers. The services that Facebook and Google provide to consumers are free, while Amazon offers goods at generally lower prices than other retailers.
What is missing from the Borkian analysis—which has shaped antitrust law (or the lack thereof) in the United States for the last few decades—is that we consumers are not getting these goods and services for free. We are giving the tech platforms our personal data, which is obviously worth quite a bit of money. If this personal data were not worth anything, these companies would not be spending billions of dollars on infrastructure and software designed for the express purpose of collecting and analyzing it.
I am not a lawyer, but it seems to me that if Facebook and Google are able to leverage the ubiquity of their platforms to extract for free from consumers something of value—our personal data—that is harm.