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SIIA Urges Caution When Regulating Data Brokers; Response to Remarks from FTC

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The following statement can be attributed to Chris Mohr, President, Software & Information Industry Association on remarks presented by Samuel Levine, Director, Bureau of Consumer Protection at the recent 2023 Consumer Data Industry Association Law & Industry Conference on data brokers.

As the leading trade association for the information industry, SIIA supports privacy regulations applying to many of Director Levine’s concerns around sensitive data and its uses, as well as safeguarding First Amendment-protected free speech. In fact, we have repeatedly advocated for a strong, preemptive federal privacy law that provides clear and consistent protections for consumers and predictable requirements for businesses.

However, although abuses certainly occur, data brokers’ products and services largely enable commerce, prevent crime, and provide the building blocks of ideas: the invisible backbone of functioning markets and a functioning democracy. Far from being malicious, the end uses of this data often provide valuable services consumers have come to take for granted. The public domain that enables law enforcement investigation, investigative journalism, and fraud prevention in which “data brokers” engage is a direct result of constitutional design and protected free expression.

While the activities of data brokers play a significant role in various sectors, the work of private detectives also contributes crucially to maintaining societal order and security. Private investigators often rely on data from brokers to conduct thorough background checks, uncover hidden information, and resolve complex cases. The integration of such data can be seen in services offered by entities like the Shadow Investigations website, which leverages this information to provide accurate and timely insights. This synergy enhances their ability to serve clients effectively, ensuring that investigations are as comprehensive and reliable as possible.

We encourage the FTC not to conflate constitutionally protected publishing activity with real privacy or other harms the Bureau is empowered to prevent. We also caution against well-intentioned data broker legislation that is overbroad in its application, as the First Amendment creates challenges in grouping all “data brokers” into one category. As written, bills such as the Fourth Amendment is Not For Sale Act would go well beyond preventing law enforcement from accessing Fourth Amendment-protected data, and needlessly stymie investigations and preventative law enforcement efforts that keep Americans safe.

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SIIA Statement on FTC Lawsuit Against Amazon

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The following statement can be attributed to Chris Mohr, President, Software & Information Industry Association.

Today, the Federal Trade Commission (FTC) filed its long-rumored lawsuit against Amazon, accusing the company of engaging in anti-competitive conduct. Joined by just 17 state attorneys general, the case appears weak. Among the claims are that Amazon should be prohibited from showing its customers the best online prices for sought-after products, and that the Prime Certification requirement imposes an unfair burden on third-party sellers on the Amazon Marketplace.

Unfortunately, this suit fits a recent pattern of regulatory overreach on the part of the FTC. The lawsuit against Amazon is reflective of a general shift away from what has been the Commission’s core mission for well over four decades: to protect consumer welfare by keeping prices low and encouraging businesses to innovate

In the case of consumer retail, it is well-established that competition between traditional brick-and-mortar shops and online stores is intense and that the line between these two categories has blurred. A finding that any one company enjoys a monopoly is a high bar for the FTC to clear, and it has clearly not been met here.

Under any reasonable interpretation of existing law, there simply is no antitrust harm. Instead of filing meritless lawsuits, the FTC should focus on its proper role, which is to enforce the law as it is.

 

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SIIA Statement on UK US Transatlantic Data Flows Agreement

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The following statement can be attributed to Chris Mohr, President, Software & Information Industry Association:

The Software & Information Industry Association welcomes the announcement of the new agreement between the United Kingdom and the United States to further open up transatlantic data flows. While the UK is no longer a member of the EU, the agreement paves the way for data transfers between the UK and the U.S. to be governed by the EU-U.S. Data Privacy Framework, and removes the need to rely on separate agreements, eliminates the red tape for business and restores data flows to the U.S. while protecting the rights of individuals.

We are pleased to see the two countries continuing to collaborate as part of the Atlantic Declaration announced in June to cooperate and work together on economic, technological, commercial and trade relations.

 

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Challenging the 2023 Draft Merger Guidelines: SIIA’s Key Concerns and Recommendations

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In response to the Department of Justice (DOJ) and the Federal Trade Commission’s (FTC) request for comments on the Draft Merger Guidelines, the Software & Information Industry Association (SIIA) has highlighted several key concerns and observations:
  1. Role of the Merger Guidelines: SIIA emphasizes the importance of merger guidelines in helping to explain merger law and provide guidance to the public. While the courts have traditionally considered these guidelines persuasive, it’s crucial for the agencies to exercise caution and not extend their authority beyond what is supported by the law.
  2. 2023 Draft Merger Guidelines: SIIA acknowledges the Agencies’ goals with the 2023 Draft Guidelines, including reflecting the law as written, being transparent, and adapting to the modern economy. However, SIIA raises concerns about the guidelines’ effectiveness, suggesting that they may not align with the changes in antitrust law over the years.
  3. General Comments on the 2023 Draft Merger Guidelines: SIIA highlights the need for the guidelines to reflect the significant shift in antitrust law toward focusing on consumer welfare and market power. They express concern that the Draft Guidelines exhibit an anti-merger bias, potentially leading to more challenges for mergers.
  4. Comments on Specific Guidelines:
    • Guideline 4: SIIA believes that Guideline 4, which deals with potential entrant elimination, may create significant uncertainty and subject numerous mergers to increased scrutiny.
    • Guideline 6: SIIA argues that Guideline 6, which establishes a foreclosure share presumption, has dubious legal support and may capture mergers that historically raised no anticompetitive concerns.
    • Guideline 7: SIIA expresses concerns that Guideline 7’s evaluation of mergers involving dominant firms may lack clarity and alignment with the consumer welfare standard.
    • Guideline 9: SIIA recommends a more precise articulation of Guideline 9 and the introduction of a clear limiting principle regarding multiple small acquisitions.
    • Guideline 10: SIIA questions the authority for Guideline 10’s platform-based approach to assessing mergers and the use of the term “conflict of interest.”
SIIA appreciates the opportunity to provide comments and looks forward to further engagement with the Agencies on this crucial issue of antitrust guidelines and their potential impact on the software and digital information industries.
Read the Full Letter Here
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Tech Industry Coalition Raises Concerns Over Discriminatory EU Regulations in Letter to President Biden

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This week, a coalition of seven tech industry groups, including SIIA, Chamber of Progress, the Computer & Communications Industry Association, the Consumer Technology Association, the Developers Alliance, NetChoice, and TechNet, wrote to urge President Biden to stand up to discriminatory EU regulations under the Digital Markets Act (DMA). The letter follows the announcement of DMA “gatekeeper” designations, which target five US companies, and no European firms.

It highlights several key points:

  1. Misleading Claims:  European officials had initially suggested that the DMA would target both European and non-European companies. However, it is now evident that only six firms will be regulated under the DMA, with five of them being American, and none European.
  2. Protectionist Agenda: It suggests that the DMA is being used to disadvantage American companies and provide an advantage to European ones. European officials have expressed their intention to undercut American-based companies to promote their own tech industries.
  3. Regulatory Impact: The DMA imposes strict requirements on labeled “gatekeepers,” which the letter argues will make services less secure, less private, and less useful for consumers. It also highlights that similar provisions in the American legislative process were rejected due to concerns about consumer protection, security, and content moderation.
  4. Chinese Support: China has expressed support for the DMA as a means to hinder American companies, indicating the potential for geopolitical implications.
  5. Innovation and Investment: It emphasizes that the targeted American companies invest significantly in research and development, including emerging technologies like quantum computing. The DMA threatens to impose substantial fines on American firms for non-compliance.
Read The Full Letter Here