During his remarks at the Antitrust West Coast Conference, the U.S. Department of Justice’s (DOJ’s) Acting Deputy Assistant Attorney General for Criminal Enforcement, Daniel W. Glad, addressed “algorithmic collusion” and, importantly, argued that such conduct is not “beyond the reach of criminal antitrust enforcement.”

Glad reiterated that software does not change the basic rule that requires competitors to compete and noted that software “cannot launder collusion.” He also asserted that criminal enforcement could arise on “the right record.” Among the factors that could provide such a record is the existence of an understanding between competitors that their sensitive, non-public data will be used to set prices for competitors and that the competitors participated based on that understanding. Of course, when criminal enforcement is considered, criminal intent must be present. Glad argued that this analysis requires a review of human decision-making and whether an actor knowingly used a system to do what the actor could not lawfully do directly. This question is not answered by simply asking, “Who typed the code?”

Next, Glad stated that the Antitrust Division’s current investigative architecture is poised to address present-day threats to competition. Specifically, he pointed to the Procurement Collusion Strike Force and the Whistleblower Rewards Program as recently developed tools that have “already changed the math.”

Finally, Glad took the opportunity to tout the importance of robust antitrust compliance and training efforts when using artificial intelligence and algorithmic tools.