外刊阅读 | 大西洋月刊 | 算法操纵价格，法律边界何在？

Scientific advances are often not the efforts of a single genius but more like a palimpsest in which layer upon layer of thought has been inscribed by brilliant heretics.

科学进步往往不是靠某个天才的一己之力，而更像是层层叠加的羊皮纸手稿，上面镌刻着无数杰出异端思想家的智慧。

AI Price-Fixing Dystopia

一个由人工智能操纵价格的反乌托邦世界

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If you rent your home, there’s a good chance your landlord uses RealPage to set your monthly payment. The company describes itself as merely helping landlords set the most profitable price. But a series of lawsuits says it’s something else: an AI-enabled price-fixing conspiracy.The classic image of price-fixing involves the executives of rival companies gathering behind closed doors and secretly agreeing to charge the same inflated price for whatever they’re selling. This type of collusion is one of the gravest sins you can commit against a free-market economy; the late Justice Antonin Scalia once called price-fixing the “supreme evil” of antitrust law. Agreeing to fix prices is punishable with up to 10 years in prison and a $100 million fine.

But, as the RealPage example suggests, technology may offer a workaround. Instead of getting together with your rivals and agreeing not to compete on price, you can all independently rely on a third party to set your prices for you. Property owners feed RealPage’s “property management software” their data, including unit prices and vacancy rates, and the algorithm—which also knows what competitors are charging—spits out a rent recommendation. If enough landlords use it, the result could look the same as a traditional price-fixing cartel: lockstep price increases instead of price competition, no secret handshake or clandestine meeting needed.

The many lawsuits against RealPage differ in their details, but all make the same central argument. According to one estimate, in more than 40 housing markets across the United States, 30 to 60 percent of multifamily-building units are priced using RealPage. The plaintiffs suing RealPage, including the Arizona and Washington, D.C., attorneys general, argue that this has enabled a critical mass of landlords to raise rents in concert, making an existing housing-affordability crisis even worse.

The lawsuits also argue that RealPage pressures landlords to comply with its pricing suggestions—something that would make no sense if the company were merely being paid to offer individualized advice. In an interview with ProPublica, Jeffrey Roper, who helped develop one of RealPage’s main software tools, acknowledged that one of the greatest threats to a landlord’s profits is when nearby properties set prices too low. “If you have idiots undervaluing, it costs the whole system,” he said. RealPage thus makes it hard for customers to override its recommendations, according to the lawsuits, allegedly even requiring a written justification and explicit approval from RealPage staff. Former employees have said that failure to comply with the company’s recommendations could result in clients being kicked off the service. “This, to me, is the biggest giveaway,” Lee Hepner, an antitrust lawyer at the American Economic Liberties Project, an anti-monopoly organization, told me. “Enforced compliance is the hallmark feature of any cartel.”

The company disputes this description, claiming that it simply offers “bespoke pricing recommendations” and lacks “any power” to set prices. “RealPage customers make their own pricing decisions, and acceptance rates of RealPage’s pricing recommendations have been greatly exaggerated,” the company says.In December, a Tennessee judge rejected RealPage’s motion to have a class-action lawsuit against it dismissed, allowing the case to go forward. It would be a mistake, however, to conclude from that example that the legal system has the algorithmic price-fixing problem under control. RealPage could still prevail at trial, and in any case, it isn’t alone. Its main competitor, Yardi, is involved in a similar lawsuit. One of RealPage’s subsidiaries, a service called Rainmaker, faces multiple legal challenges for allegedly facilitating price-fixing in the hotel industry. (Yardi and Rainmaker deny wrongdoing.) Similar complaints have been brought against companies in industries as varied as health insurance, tire manufacturing, and meat processing. But winning these cases is proving difficult.

Without price competition, businesses lose their incentive to innovate and lower costs, and consumers get stuck with high prices and no alternatives.Price-fixing, in other words, has entered the algorithmic age, but the laws designed to prevent it have not kept up. 

如果没有价格竞争，企业就会失去创新和降低成本的动力，消费者就会被高价困住，别无选择。换句话说，价格垄断已经进入了算法时代，但旨在防止它的法律却没有跟上。

The challenge is this: Under existing antitrust law, showing that companies A and B used algorithm C to raise prices isn’t enough; you need to show that there was some kind of agreement between companies A and B, and you need to allege some specific factual basis that the agreement existed before you can formally request evidence of it. 

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