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It’s always fun to see what names politicians come up with for their legislative proposals. Take, for example, the American Innovation and Choice Online Act, which is co-sponsored by Sens. Amy Klobuchar (D-Minnesota) and Chuck Grassley (R-Iowa) and just cleared the Senate Judiciary Committee. Should it pass, it would promote neither innovation nor choice, but would in fact give the Federal Trade Commission and the Department of Justice a mandate to squash innovation.

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There has been a wave of legislative proposals on both sides of the Atlantic that purport to improve consumer choice and the competitiveness of digital markets. In a new working paper published by the Stanford-Vienna Transatlantic Technology Law Forum, I analyzed five such bills: the EU Digital Services Act, the EU Digital Markets Act, and U.S. bills sponsored by Rep. David Cicilline (D-R.I.), Rep. Mary Gay Scanlon (D-Pa.), Sen. Amy Klobuchar (D-Minn.) and Sen. Richard Blumenthal (D-Conn.). I concluded that all those bills would have negative and unaddressed consequences in terms of information privacy and security.

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App stores are at the forefront of policy debates surrounding digital markets. The gatekeeping position of Apple and Google in the App Store and Google Play Store, respectively, and related concerns about the companies’ rule-setting and dual role, have been the subject of market studies launched by the Australian Competition and Consumer Commission (ACCC), the Netherlands Authority for Consumers & Markets (ACM), the U.K. Competition and Markets Authority (CMA), the Japan Federal Trade Commission (JFTC), and the U.S. House of Representatives.

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Abstract

Commentators have likened the recent surge in social-media-driven (SMD) retail trading in securities such as GameStop to a roller coaster: “You don’t go on a roller coaster because you end up in a different place, you go on it for the ride and it’s exciting because you’re part of it.” The price charts for GameStop over the past few months resemble a theme-park thrill ride. Retail traders, led by some members of the “WallStreetBets” subreddit “got on” the GameStop roller coaster at just under $20 a share in early January 2021 and rode it to almost $500 by the end of that month. Prices then dropped to around $30 dollars in February before shooting back to $200 in March. But, like most amusement park rides that end where they start, many analysts expect market forces will ultimately prevail, and GameStop’s share price will soon settle back to levels closer to what the company’s fundamentals suggest it should. Conventional wisdom counsels that bubbles driven by little more than noise and FOMO—fear of missing out—should eventually burst. There are, however, signs suggesting that something more than market noise and over-exuberance is sustaining the SMD retail trading in GameStop.

There is evidence that at least some of the recent SMD retail trading in GameStop and other securities is not only motivated by the desire to make a profit, but rather to make a point. This Essay identifies and addresses the emerging phenomenon of “expressive trading”—securities trading for the purpose of political, social, or aesthetic expression—and considers some of its implications for issuers, markets, and regulators.

In policy discussions about the digital economy, a background assumption that frequently underlies the discourse is that intermediaries and centralization always and only serve as a cost to consumers, and to society more generally. Thus, one commonly sees arguments that consumers would be better off if they could freely combine products from different trading partners. According to this logic, bundled goods, walled gardens, and other intermediaries are always to be regarded with suspicion, while interoperability, open source, and decentralization are laudable features of any market.

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Abstract

Among the numerous legislative initiatives implemented around the globe on digital platforms, some of these provisions are explicitly directed towards app stores. As they have all the distinctive features of multi-sided markets, app store owners represent the prototype of digital gatekeepers, controlling access to mobile ecosystems and competing with business users operating on the platforms. In light of the rule-setting and dual role of these gateway players, regulatory interventions are required in order to ensure that large app stores are treated like common carriers or public utilities, thereby imposing upon them a neutrality regime vis-à-vis new entrants. For the very same reasons, dominant app store providers have been subject to an increasing number of antitrust investigations attempting to ensure equal treatment and to avoid self-preferencing at the expense of rivals’ services. Against this background, the article investigates whether antitrust provisions are flexible enough to curb anti-competitive practices carried out by app stores and the extent to which regulatory interventions could, on the other hand, be necessary in order to address the seemingly unique features of the app economy.

Even as delivery services work to ship all of those last-minute Christmas presents that consumers bought this season from digital platforms and other e-commerce sites, the U.S. House and Senate are contemplating Grinch-like legislation that looks to stop or limit how Big Tech companies can “self-preference” or “discriminate” on their platforms.

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ICLE Director of Competition Policy Sam Bowman joined The CapX Podcast for a discussion of the biggest stories of 2021. The full episode is embedded below.

Section 230 of the Communications Decency Act continues to play a surprisingly large role in our political discourse, given its status as the last remaining vestige of a quarter-century-old law that was largely struck down by the courts long ago. The immunity shield the law grants to online platforms has been implicated in issues as broad-ranging as Twitter’s decision to ban former President Trump to whether Instagram exacerbates eating disorders among teens.

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