“…And Justice for All”: Antitrust Enforcement and Digital Gatekeepers

e digital economy is a fact of life, but it is not all things to all people.  There has been robust public discussion about whether the broader economy, undoubtedly transformed by digital technologies, is working well for everyone.  While some commenters have tried to dispatch the antitrust laws to address these problems, I do not believe the antitrust laws are bent towards values other than competition. Therefore, the right question is whether a defined market is competitive.  That is the province of the antitrust laws.... As we think about antitrust enforcement in the digital economy, the key issues that antitrust enforcers must untangle are whether a company is growing due to superior price, quality, and innovation, or whether some transaction or business practice is, on balance, anticompetitive in purpose and effect.  

1. As the Microsoft case and other enforcement actions involving digital technologies show, we already have in our possession the tools we need to enforce the antitrust laws in cases involving digital technologies.  U.S. antitrust law is flexible enough to be applied to markets old and new. 
2. In order to understand what conduct is anticompetitive and thus unlawful, the Antitrust Division works hard to become expert on the commercial realities of the digital economy. 
3. Clever positioning should not obscure what is otherwise ordinary evidence of an antitrust violation.  Where a company has market power, enforcers should be circumspect about conduct that does not plausibly advance a legitimate business objective and transactions that eliminate competition.  Depending on the commercial realities of a given market, enforcers may uncover facts that support taking a longer-than-usual view of entry.
4. Antitrust Division does not take a myopic view of competition.  Many recent calls for antitrust reform, or more radical change, are premised on the incorrect notion that antitrust policy is only concerned with keeping prices low.  It is well-settled, however, that competition has price and non-price dimensions.