Document Type

Article

Publication Date

2021

Publication Title

UC Davis Law Review

Issue

55

First Page

513

Abstract

Since 2001, five leading technology companies have acquired more than 600 other firms while avoiding antitrust enforcement. By accumulating technologies in adjacent or unrelated industries, these companies have grown so powerful that their influence over human affairs equals that of many governments. Their power stems from data collected by devices that people welcome into their homes, workplaces, schools, and public spaces. When paired with artificial intelligence, these devices form a vast surveillance network that sorts people into increasingly specific categories related to health, sexuality, religion, and other categories. However, this surveillance network was not created solely to observe human behavior; it was also designed to exert control. Accordingly, it is paired with a second network that leverages intelligence gained through surveillance to manipulate people's behavior, nudging them through personalized newsfeeds, targeted advertisements, dark patterns, and other forms of coercive choice architecture. Together, these dual networks of surveillance and control form a global digital panopticon, a modern analog of Bentham's eighteenth-century building designed for total surveillance. Moreover, they enable a pernicious type of influence that Foucault defined as biopower: the ability to measure and modify the behavior of populations to shift social norms. This Article is the first to introduce biopower into antitrust doctrine. It contends that a handful of companies are vying for a dominant share of biopower to achieve biosupremacy, monopolistic power over human behavior. The Article analyzes how companies concentrate biopower through unregulated conglomerate and concentric mergers that add software and devices to their surveillance and control networks. Acquiring technologies in new markets establishes cross-market data flows that send information to acquiring firms across market boundaries. Conglomerate and concentric mergers also expand the control network, establishing beachheads from which platforms exert biopower to shift social norms. Antitrust regulators should expand their conception of consumer welfare to account for the costs imposed by surveillance and coercive choice architecture on product quality. They should revive conglomerate merger control, abandoned in the 1970s, and update it for the Digital Age. Specifically, regulators should halt mergers that concentrate biopower, prohibit the use of dark patterns, and mandate data silos, which contain data within specific markets, to block cross-market data flows.

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