When most people think of antitrust, they think of money: collusive deals to fix the price of a computer component or even tuna, or an abuse of market dominance that sticks consumers with a more expensive (and perhaps inferior) product. But in a brave new world where personal data is every bit as valuable as currency, is privacy the next frontier in antitrust litigation?
It’s an idea that’s getting increasing attention—particularly in Europe. Margrethe Vestager, the EU Competition commissioner, said in a speech last fall that EU regulators “need to start looking at mergers with valuable data involved.” U.S. Federal Trade Commission acting Chairwoman Maureen Olhausen co-authored a paper on the notion of guarding consumer privacy through antitrust law, and Wired magazine more recently declared in a headline that “Digital Privacy Is Making Antitrust Interesting Again.” The Recorder spoke with several defense and plaintiffs attorneys about how data-related dealmaking could actually lead to an enforcement action or civil antitrust litigation. While it may not be on the immediate horizon, here are three ways the issue could come before the courts:
