Manatt Antitrust and Competition Partner Dylan Carson and Privacy and Data Security Partner Paul Luehr were quoted in Corporate Counsel on the issue that while artificial intelligence (AI) allows for easier price coordination, it is becoming increasingly difficult to prove collusion.
In the article, Carson referred to this issue the Skynet problem, raising the following questions: “Does the artificial intelligence decide on its own what optimal pricing is? Or do humans have to code and agree that they’re going to use the same algorithm and the same artificial intelligence to produce an optimized price that the people who sell the product will agree to follow and abide by?” He also commented on the DOJ’s AI monitoring initiative nickname Project Gretzsky—referring to hockey’s Wayne Gretzsky, who mastered anticipating where the action on the ice was heading—saying “The idea is you have to skate to where the puck is going, not where it’s been. You get up to speed on where you know where the enforcement is going to need to occur. So in the large language learning models and the AI world, you are going to need to understand how it works first before you try to enforce the laws in that area.”
Luehr added perspective on the importance of having transparency in how AI systems work, noting that the difficulty to prove that a company had the requisite intent to fix its prices is precisely why the DOJ and FTC recently put out a statement reminding companies that communications through ephemeral messaging apps like Slack, WhatsApp and GChat should be preserved. “I see they’re worried that they’re not getting the conversations that are going on in the background about tools like AI. And without that data, they can’t do their job,” he said.
Read the full Corporate Counsel article here.