Until very recently, if you asked an antitrust lawyer what privacy has to do with their practice, there is a good chance you'd get back a blank stare or a "not much."
For decades, American antitrust law has been dominated by the Chicago School, which, as Robert Bork explains in his 1978 book "The Antitrust Paradox: A Policy at War with Itself," posits consumer welfare as the primary — if not exclusive — goal of antitrust.
Under the consumer welfare standard, antitrust's guiding light has been achieving what Tim Wu in "The Curse of Bigness, Antitrust in the New Gilded Age," calls "the lowest price for consumers" — even at the expense of competing policy goals, such as economic inequality, consolidation of political power and yes, privacy.
Take, for example, National Society of Professional Engineers v. United States in 1978, in which the U.S. Supreme Court determined that while the consumer welfare standard encompasses not merely a product's immediate price, but "all elements of a bargain — quality, service, safety and durability."
Facially, it has never been clear under the Chicago School that privacy drives much if any antitrust analysis.
That is now changing. As market shares consolidate in several key industries — technology perhaps chief among them — longstanding assumptions in antitrust are now being challenged, such as in the recent legislation package floated in the U.S. House aimed at reining in large technology companies and restoring competition in digital markets.
Antitrust law, initially "slow to recognize privacy as a dimension of product quality," now confronts large digital platforms that "hold and use our data," writes Erika Douglas in "The New Antitrust/Data Privacy Law Interface."
The companies that operate these platforms, colloquially referred to as Big Tech, have come under increased scrutiny in recent years, and lawmakers, regulators and consumers now face a new set of dilemmas as to how privacy and antitrust should interact. Preserving privacy and curbing unfair competition are both desirable policy goals, but they do not always peacefully cohabitate.
On one hand, firms defending against allegations of anti-competitive conduct have used privacy to justify their practices. On the other, antitrust plaintiffs, including government agencies, have argued that concentration of consumer data in the hands of a few firms carries privacy and antitrust risks and responsibilities of its own.
Thus, in today's evolving antitrust world, privacy can function as a shield, a sword, or both, such that soon enough, few antitrust practitioners will be caught flat-footed by this article's opening question.
To learn more, read the “Privacy Now Looms Large in Antitrust Enforcement article published by Competition Law360 on Sept. 20, 2021. This article is reprinted with permission of Portfolio Media, Inc.