This post is part of a series of provocations published in Tech Policy Press following the third iteration of a Digital Markets Act (DMA) enforcement symposium hosted in Brussels on November 20 and 21 by the free-speech organization ARTICLE 19 in partnership with the Center for Digital Governance at the Hertie School, the University of Trento, the Amsterdam Center for European Law and Governance and the University of Namur.

Digital industries are a major focus of competition regulators, especially since the emergence of sector-specific legislation like the EU’s Digital Markets Act (DMA). As was clear in the recent Article 19 symposium on the DMA which focused on its impact and next steps for its implementation, tech experts are playing an increasingly large role in competition enforcement, offering advice and analysis that is relied on by regulatory authorities. But who are these tech experts? What do they do? What, specifically, are they experts in?

This post starts by explaining the importance of technologists to contemporary competition enforcement. It then opens the black box of expertise by describing some different specialisms which come under the broad umbrella of a “technologist.” It ends by considering how these experts can benefit enforcers, and with some suggestions for their continued integration into the discipline.

The argument for tech expertise in competition enforcement

The notion that competition law and regulation should draw on subject-specific experts is by no means new. In ordinary competition law, these experts are mostly trained in economics, and their integration into the discipline is very well established. Competition enforcement requires decoding the behavior of companies and mapping it onto the law. An authority which lacks the expertise to understand the details of how markets work will therefore be ill-equipped to enforce competition law in those markets. When it comes to digital markets, there have long been discussions about whether effective enforcement must reach beyond economics, into additional sources of expertise.

While we should be wary of a “tech exceptionalist” view of the digital economy which sees it as warranting special treatment vis-a-vis other sectors, regulation specific to digital markets like the DMA already exists, and competition authorities must generally take into account all the relevant facts surrounding a particular case, some of which may be technical in nature. As such, it seems that there is a strong argument to integrate tech expertise into enforcement agencies.

Competition authorities have consistently shown a willingness to integrate tech expertise, by which I specifically refer to those trained in fields relevant to the digital economy, into their enforcement practice. These people might not necessarily be “hard” technologists in the sense that they have scientific expertise; they could also have “soft” expertise in terms of knowledge about how platforms are actually designed, built and deployed in practice.

The UK’s Competition and Markets Authority is often seen to be a leader in terms of tech expertise. Beginning in 2018, the Competition and Markets Authority (CMA) began to staff its Data, Technology and Analytics (DaTA) unit with employees from non-economic technical backgrounds. While the initial focus seemed to be on hiring data scientists, a recent report described the unit as including over 80 staff, made up of “data scientists and data engineers, technologists, behavioral scientists, and digital forensics specialists.”

Turning to the EU, its landmark “Competition Policy for the Digital Era” report was written by three distinguished authors: a competition lawyer (Prof. Heike Schweitzer), a competition economist (Prof. Jacques Crémer), and a technologist (Prof. Yves-Alexandre de Montjoye). Recent developments include the hiring of Prof. de Montjoye as the inaugural Chief Technology Officer of DG Comp, and the expansion of the Commission’s DMA enforcement team to include several more technologists.

It is therefore clear that competition authorities have begun to hire tech experts, and have begun to do so in earnest. Yet, who are these experts? And what exactly do they have expertise in? Clear answers to such questions are crucial if those involved in the world of competition enforcement are to make sense of these developments.

The varieties of expertise relating to digital platforms

A particularly exciting aspect of the Article 19 symposium was the breadth of technical expertise in attendance, drawn from academia, civil society, business and the European Commission itself. Modern digital markets are complex, and making them work requires a wide variety of different kinds of expertise. This fact is sometimes difficult to appreciate from the outside, meaning that different kinds of technologists can get lumped together into a homogenous group. Competition lawyers and economists reading this post will no doubt be familiar with this dynamic, from when the former get asked for advice on resolving an employment dispute, or when the latter get asked for which stocks to pick.

So what kinds of tech expertise are there? What follows is a short list, painted with a somewhat broad brush, of categories of expertise in which individuals can develop a deep and comprehensive grasp of a particular skillset, and which I believe to be relevant to the regulation of large digital platforms. The aim is to be neither exhaustive nor definitive, but rather to highlight (in no particular order) some of the heterogeneity in tech expertise pertinent to the digital economy. Some of the below kinds of expertise may not strictly fall into the category of “technical” expertise, but are nevertheless crucial to the development of modern digital platforms, and thus important to include.

Software engineers write most of the code underpinning digital platforms. Their job broadly involves taking a brief for what some software should do before designing, implementing and testing a software system to do it, as well as helping maintain the system “in production.” Software engineers could be especially helpful in the context of competition enforcement when agencies need to get into the technical details of how platforms operate in practice. For instance, Jitendra Palepu’s contribution to the symposium featured a technical discussion of work with his coauthors on whether Google’s decision to expose a virtual machine to third-party Android forks as opposed to giving them access to the device-level hardware itself, constituted a reasonable means to avoid “compromis[ing] the integrity” of the platform as per Article 6(7) DMA. Understanding the trade-offs involved in such decisions, and making judgements as to whether such a decision is technically prudent, is a core part of a software engineer’s expertise. Separately, as the people who typically build platforms, software engineers have the imaginative capacity to put forward a positive vision for how platforms could work. As such, they could be crucial when it comes to remedy design, or for assessing whether technical justifications for certain conduct put forward by tech companies are sound.

Site reliability engineers are specialist software engineers, whose role is specifically to make sure that platforms don’t stop working. When a platform starts to experience issues, site reliability engineers will typically be the people recognizing, triaging and responding to them. While on the face of it, this kind of expertise does not appear immediately relevant to platform regulation, the resilience of platforms has been repeatedly highlighted as a competition-relevant issue, especially today when large parts of the digital economy are dependent on a small number of platforms (as we saw in the recent Cloudflare outage).

Data scientists are perhaps the most common kind of expertise discussed in competition enforcement circles, and perhaps not coincidentally, can be surprisingly close to economists in terms of their skillsets. They have expertise in extracting knowledge and insights from data using a combination of statistical and machine learning tools, and are therefore useful to competition agencies when it comes to handling large volumes of evidence or detecting patterns in market data. This is borne out in the most recent Cross-Agency Report from the Computational Antitrust Project, which contains many references to how agencies around the world are using data scientists in the course of their work. Data scientists are not only experts in analyzing data, but also in visualizing it and communicating the stories that the data can tell. This skill could be crucial when it comes to communicating the findings of a study or investigation to a legal or lay audience.

User experience (UX) designers focus on ensuring that digital products provide the desired experience for end consumers. They are typically responsible for both ensuring that the “look and feel” of a digital product is both aesthetic and consistent, and often conduct research studies to ensure that end consumers are able to use the product effectively. UX teams might also include UX engineers, who bridge the gap between the design of digital products and their technical implementation. UX expertise could be critical in competition enforcement as a means to assess whether platforms are effectively complying with their obligations under the law, or whether they are employing techniques such as “dark patterns” to comply with the letter of the law but not its spirit. A paradigmatic example from the symposium can be found in the work of Gemma Petrie of Mozilla, who presented UX research assessing the usability of browser choice settings as mandated by Article 6(3) DMA.

Project managers oversee the execution and delivery of the work of other members of the team building digital products, and ensure that it is completed on time and within budget. While on the surface, this might not sound like a technical role, the organizational processes involved in building, deploying and managing large digital platforms are intricate indeed, and there is a great deal of expertise involved in managing them. Project managers are also very good at detecting when the complexity of tasks has been overstated. As such, they could be of great benefit to competition agencies trying to establish whether complaints from platforms about the onerous nature of regulatory requirements are legitimate or not. Similarly to software engineers, they also tend to possess a strong sense of what is possible when it comes to the design and implementation of platforms. Furthermore, when it comes to competition regulation, knowledge of the organizational processes at play within the companies producing digital platforms can be just as important as knowledge of the technology itself. Along those lines, my contribution to the symposium was inspired by how project managers build formal review processes to ensure that updates to digital products are only launched when all relevant stakeholders have approved them. As such, I proposed that the DMA work more like merger control, such that project managers would be required to get positive ex ante approval from the Commission before launching major updates to core platform services.

Last but not least, computer scientists tackle the theoretical end of digital platforms. Sometimes described as applied mathematicians, they focus on the fundamentals of algorithms, data structures, and computation itself. When it comes to assessing the theoretical feasibility of proposed technical remedies, considering privacy and security guarantees of particular algorithms, or deeply understanding how AI training works, computer scientists have the theoretical chops to dive deep and give rigorous answers.

Naturally, the above list is not complete. It aims to give a flavor, not a complete taxonomy, of tech expertise relevant to the oversight of digital markets. It could have also included database administrators, cybersecurity or digital forensics experts, for example. Above all, the list aims to show that if authorities are to holistically understand the way in which digital platforms work, then they will need to hire broadly across these different kinds of expertise to build up a comprehensive picture.

Conclusion and next steps

In my view, the strongest argument for investment in a broad variety of tech expertise is that it would afford agencies the capability to better investigate each step of the process of a digital platform’s production. In doing so, they could identify competition, fairness or contestability issues more thoroughly and precisely. They could also widen their conception of the means of intervention, and allow for more creative thinking when it comes to the imposition of remedies, thus opening up the potential for a more experimentalist approach to regulation.

Relatedly, and keeping in mind that markets are made, not found, a wider range of tech expertise would allow agencies to better imagine how digital markets could work. With a better understanding of “how the sausage is made”, they would be better placed to understand how digital platforms could be developed, and thus adopt a shaping approach with regards to how digital platforms should develop, in line with the purpose of the laws and regulations they are enforcing. This would help wrest the direction of platform development from the control of large, undemocratic tech companies, and strengthen its oversight by authorities with a mandate to act in the public interest.

An outstanding question, which is too large to tackle here, is how best to integrate tech expertise into competition agencies. One suggestion, mentioned in a CMA discussion paper, is to formally create the role of “competition technologists” within agencies. I am broadly supportive of such an initiative. In doing so, however, we must be mindful of naively “transplanting” tech expertise into competition law and regulation. Without its careful integration, the knowledge of tech experts risks becoming lost in translation, and potentially doing more harm than good.

An antidote to this, in my view, is for agencies to invest in training their tech expert hires, so that they also have a solid foundation in law. While this would admittedly incur an up-front cost, such experts would then be better placed to pursue an interdisciplinary approach, which would commensurate the means and goals of the law with novel and sector-specific perspectives. Such training programs would help ensure a synthesis between the “new” kinds of expertise specific to digital markets, and the “pre-existing” yet no less important expertise which already exists in abundance within competition agencies.

***Context and disclosure: Todd Davies is a final year PhD candidate in competition law at University College London. He holds a bachelor’s degree in computer science, a master’s degree in political science, and worked for six years as a professional software engineer at Google (no continuing affiliation as of 2022) prior to starting his doctoral studies. His views are entirely his own. He would like to thank Spencer Cohen, Chris Williamson and Leon Handreke for their comments on previous drafts.