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The central concern in Shirish Nadkarni’s argument is a conflict built into some digital platforms: a company may control a route to customers, set the rules for using it, collect information about businesses that depend on it, and compete against those same businesses. That combination can give the platform advantages that ordinary rivals do not have. But a large company, a popular service, or a low price is not by itself proof of an antitrust violation.
Nadkarni’s excerpt, published by GeekWire on July 3, 2023, draws examples from Amazon, Apple, and Google and argues for stronger rules, including data restrictions, limits on lines of business, and in some cases structural separation. The examples are allegations and policy arguments, not a blanket finding that the companies broke the law. Read the original excerpt.
The platform conflict, in plain English
Imagine an online marketplace that hosts independent sellers. It can see which products sell, what prices customers accept, and how shoppers find and buy them. If the marketplace also sells its own products, it may be able to use its position as operator and competitor to its advantage. The concern is not simply that it launches a similar product. It is that the platform might use nonpublic information, favor its own offer in search or placement, or impose rules on rivals that it does not apply to itself.
This tension can arise beyond retail. An app store controls distribution while offering its own services; an operating-system provider sets defaults while competing in search or other software; a marketplace may determine which sellers qualify for promotions. In each case, the operator can be both referee and player.
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For a small business, the stakes are practical: a change in fees, rankings, account access, advertising rules, or data access can affect sales and bargaining power. Yet the fact that a business depends on a platform does not settle whether the platform’s conduct is unlawful. That requires evidence about the relevant market, the conduct, its effects on competition, and the applicable law.
What examples does Nadkarni cite?
The excerpt uses several cases to illustrate possible conflicts. They should be read as attributed allegations or examples offered in support of reform—not as proof that every company involved was found liable by a court.
Amazon and third-party seller data
Nadkarni cites allegations involving Upper Echelon, a seller of an office-chair seat cushion, and Amazon Basics’ later sale of a similar product. The concern is that a marketplace might use nonpublic seller information to identify promising products and compete with the businesses supplying that information. The excerpt does not, by itself, establish what information was accessed, who accessed it, whether it informed product development, or whether a court found unlawful use.
Those distinctions matter. A platform may need seller information for ordinary operations such as fulfilling orders, detecting fraud, or improving search. A more serious competition concern would arise if competitively sensitive information were passed to a competing business and used to disadvantage the seller. A sound investigation would need to trace access, internal controls, decision-making, and the effect on competition—not infer misuse solely from a similar product appearing later.
Google, Android, and defaults
The excerpt argues that Google’s position in Android could help make Google Search and Google Play the default or preinstalled choices on third-party handsets, and that access to Android-related data could offer insight into competing apps. Defaults, preinstallation, exclusive agreements, and data use are different practices and should not be collapsed into one claim.
The competition question is whether a particular arrangement forecloses rivals or makes it materially harder for them to reach users—not simply whether a service is installed by default. Relevant evidence could include the terms of agreements, users’ ability to change defaults, the availability of rival services, and whether data or placement rules are applied consistently.
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Apple and parental-control apps
Nadkarni points to Apple’s introduction of Screen Time and the removal of certain parental-control apps from the App Store. The example illustrates a gatekeeper conflict: Apple controls app distribution and can also offer a feature in a category where independent developers compete.
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Amazon and Ecobee
The excerpt cites allegations that Amazon required smart-thermostat maker Ecobee to share device-use data in connection with marketplace access, certification, or participation in major sales events. If access to customers is conditioned on surrendering competitively sensitive data, that can raise concerns about coercion or discriminatory access. But establishing such a claim requires evidence about the actual condition, the alternatives available to Ecobee, and how the information was used.
Amazon and Quidsi, the owner of Diapers.com
The excerpt describes Amazon’s price competition with Quidsi and cites a reported figure of more than $200 million in losses in one month. Nadkarni presents the episode as an example of a large platform’s ability to subsidize entry or sustain a price campaign against a smaller rival.
Losses and aggressive discounts alone do not prove predatory pricing. Low prices often benefit customers, and a company may discount for legitimate reasons. A conventional predatory-pricing analysis asks, among other things, whether prices were below an appropriate cost measure and whether the firm had a realistic prospect of recouping losses after competition weakened. A later acquisition, or a rival’s eventual sale, does not by itself prove that predation occurred.
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Why digital-platform competition is difficult to assess
Platforms often serve several groups at once: consumers, sellers, developers, advertisers, and suppliers. More participants can make a service more valuable to others, creating network effects. Large operators can spread infrastructure and development costs across many users, while accumulating data about searches, purchases, usage, and conversion. Those advantages can improve a service, but they can also make it harder for a new competitor to reach a viable scale.
Switching may be costly even when another service exists. A seller could lose customer traffic, reviews, ranking history, or fulfillment integrations. An app developer may depend on an app store for discovery and billing. A business may have alternatives in theory but no realistic way to reach comparable customers through them. Defaults on phones, browsers, and operating systems can further shape what users encounter first.
These features make market definition especially important. “Big Tech” is not a legal market. The relevant question might concern general search, mobile operating systems, app distribution, online marketplace services, or another defined area. A company can have substantial power in one market and face meaningful competition in another. Market definition affects whether a firm has monopoly power and whether its conduct could exclude rivals.
Antitrust law generally does not make success or size illegal. The analysis distinguishes possessing market power from obtaining it through superior products or execution, and from maintaining it through exclusionary conduct. Digital services may have no monetary price to consumers, so possible harms can also appear as reduced quality, privacy, innovation, choice, or opportunity for dependent businesses—not only as a higher sticker price. Those are potential theories of harm, not automatic findings.
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Nadkarni’s recommendations lean toward rules that address conflicts before they become difficult to remedy. Each option has a different reach and set of costs.
1. Structural separation
Congress could separate a platform’s intermediary business from businesses that compete with its users. For example, a marketplace operator might be barred from selling private-label goods in markets where its third-party sellers operate, or a downstream business could be divested.
The appeal is direct: separation can remove incentives to exploit seller data or favor an affiliated product, and may make neutrality easier to monitor. The costs are substantial. Divestitures are complex, and a separated company might retain advantages in brand, historical data, engineering, customer relationships, or supplier access. Separation could also reduce integration and convenience. Lawmakers would have to define the covered market and prevent a company from moving the same activity into an affiliate or adjacent category.
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2. Line-of-business limits
A narrower approach would prohibit certain activities without breaking up the entire platform. Rules might limit a dominant marketplace’s private-label sales, prevent an app store from competing in specified categories, or address tying or self-preferencing by an operating-system provider.
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3. Data firewalls and use restrictions
If the platform remains integrated, Congress could restrict the use or transfer of nonpublic, competitively sensitive business data between the infrastructure operation and competing lines. Possible safeguards include role-based access, access logs, independent audits, retention limits, and penalties for intentional misuse.
A firewall is less disruptive than a breakup, but it can be hard to enforce. Competitive insight may be inferred from aggregated reports, dashboards, market trends, or ordinary analytics even when individual records are not shared. Rules must also preserve legitimate uses of information for fraud prevention, fulfillment, payments, search quality, and consumer protection.
4. Nondiscrimination or access obligations
Congress could require a covered gatekeeper to offer access on fair, transparent, and nondiscriminatory terms. This could apply to marketplace participation, app distribution, or other services that businesses rely on to reach users.
Not every popular service is essential in the legal or practical sense. A mandate is easier to justify where a service has substantial market power, there is no realistic alternative, and denial would materially exclude competitors. It also creates ongoing questions about eligibility, fees, technical requirements, dispute resolution, and safety. Nondiscrimination should not mean accepting malware, fraud, dangerous products, or privacy-invasive applications.
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5. Predatory-pricing enforcement
The FTC or Department of Justice could investigate pricing campaigns alleged to drive rivals out of a market. The challenge is distinguishing exclusionary below-cost pricing from legitimate promotions, loss leaders, or efficiencies. Acting too late may leave a market with fewer competitors; acting too quickly can penalize discounts and raise prices for consumers.
6. Merger limits after exclusionary conduct
The excerpt also raises restricting acquisitions by a company that previously used predatory behavior against a target. A workable rule would need to establish whether the conduct actually caused the sale, whether the seller was distressed for independent reasons, whether the target was a meaningful or emerging competitor, and how long any presumption should last. A sweeping restriction could block useful investment or a rescue acquisition without addressing the underlying conduct.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Regulation before disputes, or enforcement after them?
Congress is not the only possible actor. The FTC and DOJ can bring antitrust cases under existing law; agencies and courts can review mergers; states and private parties may also pursue enforcement. Congress could instead establish sector-specific, forward-looking obligations such as transparency, interoperability, data portability, or nondiscrimination.
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What a workable law would need
- Clear coverage: Define covered platforms and markets using measurable criteria rather than relying on the label “Big Tech.”
- Specific prohibited conduct: Distinguish nonpublic competitive data from information needed for platform operations, and define what counts as self-preferencing or discriminatory access.
- Evidence and process: Specify who investigates, what evidence triggers enforcement, how affected businesses can complain, and how companies can appeal.
- Safety and privacy protections: Preserve legitimate security, fraud-prevention, and consumer-protection measures while requiring consistent application.
- Auditing and anti-evasion: Provide access to records and address indirect data transfers or circumvention through affiliates.
- Proportionate remedies: Match penalties and structural remedies to proven conduct and competitive harm, with attention to U.S. market effects and the limits of U.S. jurisdiction.
Consumers could see more independent products or app choices, but potentially less integration or convenience. Sellers and developers might gain bargaining power and more predictable access, while facing new compliance rules or changes to platform services. A firewall could protect business data but constrain analytics; mandatory access could help rivals while placing regulators in ongoing disputes about safety and fees. These are policy trade-offs, not guaranteed outcomes.
The central question raised by Nadkarni’s excerpt remains useful: should one company be able to operate a marketplace, write its rules, observe the businesses using it, and compete against them? A reasonable answer depends on evidence of market power and exclusionary conduct—and on whether enforcement, targeted conduct rules, access obligations, or separation can address the conflict with fewer harms than leaving it untouched.
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