107 Iowa L. Rev. 1283 (2022)

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Abstract

From websites to aisles, stores are collecting massive amounts of data on their consumers. This Note looks at how brick and mortar stores use this information to price discriminate—charging different customers different prices. This price discrimination may have ambiguous effects on overall societal welfare but can have negative effects on both equity and competition. Stores are mostly participating in price discrimination by offering discounts to certain customers. This results in a higher sticker price and can prevent customers from being able to purchase some products. The use of big data helps entrench monopolies and increases the size of the market in which a company has power. The current approach to the problem is to try to limit the amount of data collected by stores through the notice and consent regime. This Note argues that the current approach is not working, and the government should instead look to antitrust laws to regulate price discrimination. Specifically, the Federal Trade Commission should use its Section 5 authority to curtail big data driven price discrimination.