ANALYSIS: Is Data Security a New Antitrust Shield?

By Mark Smith, Bloomberg

Data security has evolved from a best practice to a required practice in many instances, but it may also factor as a business justification in the ever-growing antitrust frenzy against Big Tech.

In last year’s forecast, I discussed bipartisan rancor brewing against tech giants, particularly in the areas of privacy and antitrust. That unrest picked up steam in 2021, with the introduction of more billsinvestigations, and enforcement actions.

The ire, however, is not limited to legislators and regulators purportedly battling on behalf of Davidesque entrepreneurs and small business rivals. Indeed, the fight against Big Tech also includes corporate giants, like Epic Games Inc.

Notably, Epic filed an antitrust suit against Apple last year, alleging that Apple’s “monopolistic” control over its “walled garden”—i.e., Apple’s mobile device operating system (iOS)—violated federal and state antitrust laws as well as California’s unfair competition law (UCL). Specifically, Epic claimed that by requiring iOS developers like itself to distribute their apps through the App Store, and by further requiring developers to use Apple’s payment system for in-app purchases, Apple violated Sections 1 and 2 of the Sherman Act.

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