Some Commonly-Held but Shaky Assumptions about Data, Privacy and Power

August 2023 pre-print. To appear in: Maria Ioannidou, and Despoina Mantzari (eds.) Research Handbook on Competition Law and Data Privacy (Edward Elgar, forthcoming). Data has been seen as central to understanding privacy, informational power, and increasingly, digital-era competition law. Data is not unimportant, but it is misunderstood. I highlight several assumptions in need of challenge. Firstly, that data protection is distinct from privacy, and has a broader role correcting digitally-exacerbated power asymmetries. Secondly, contrary to economic received wisdom, data is not fully non-rivalrous due to the infrastructural implications of its integration. Thirdly, data can be less important than capacity for experimentation and intervention, which is not simple to ‘open up’. Lastly, data is increasingly unimportant due to large firms’ investments in confidential computing technologies, facilitating distributed analysis, learning, and even microtargeting. In the right conditions, data can be economically substituted for the ability to orchestrate a protocol — an infrastructural capacity unrecognised sufficiently in competition or other fields. This substitutability also requires the ability to force users to adhere to a protocol, bringing further privacy concerns. In sum, privacy, data protection and power need to be considered more closely entwined than at present, and all fields need to consider the infrastructural dimensions of large platforms, more than focussing on the data they accumulate.