Synopolies: The use of cryptographic technologies to impede competition in multiple jurisdictions

Many jurisdictions have developed mature infrastructures, both administratively and legislatively, to promote competition. Substantial funds have been expended to monitor activities that are anticompetitive and many jurisdictions also have adopted a form of "Cartel Leniency Program", first developed by the US Federal Trade Commission, to assist in cartel detection. Further, some jurisdictions are now criminalizing cartel behaviour so that cartel participants can be held criminally liable with substantial custodial penalties imposed. Notwithstanding these multijurisdictional approaches, a new form of possibly anticompetitive behaviour is looming. Synergistic monopolies („synopolies‟) involve not competitors within a horizontal market but complimentors within separate vertical markets. Where two complimentary corporations are monopolists in their own market they can, through various technologies, assist each other to expand their respective monopolies thus creating a barrier to new entrants and/or blocking existing participants from further participation in that market. The nature of the technologies involved means that it is easy for this potentially anti-competitive activity to enter and affect the global marketplace. Competition regulators need to be aware of this potential for abuse and ensure that their respective competition frameworks appropriately address this activity. This paper discusses how new technologies can be used to create a synopoly.

Freedom of information implications of information sharing networks for critical infrastructure protection

Protection of “critical infrastructure” has become a major issue for govern- ments worldwide. Yet in Australia, as in many other countries, including the United States, an estimated 90% of critical infrastructure is privately owned or operated commercially – in other words, critical infrastructure protection is not the exclusive domain of government. As a result, information sharing between government and the private sector has become a vitally important component of effective risk management. However, establishing effective arrangements of this kind between the public and private sector needs to take account of existing regimes of access and public disclosure which relate to government-held documents; in particular, that which is established by freedom of information (FOI) legislation. This article examines the extent to which the current Commonwealth FOI regime is likely to act as an impediment to the private sector operators of critical infrastructure participat- ing in government-operated information sharing arrangements. By examining developments in other jurisdictions, principally the United States, the article considers whether amendments to the current Australian FOI regime are necessary to ensure effective participation, consistent with the underlying object and purpose of FOI.