Volume 74, Issue 2, 551-582
The new and growing intersection between data privacy and antitrust uses data privacy as both a sword and shield against antitrust liability. On one hand, large technology firms have begun using privacy as a business justification for alleged antitrust misconduct. On the other hand, private and government plaintiffs have raised privacy concerns in antitrust litigation. Although antitrust law and data privacy law are two distinct bodies of legal doctrines, there is literature suggesting their consolidation in certain contexts. The Hipster Antitrust movement and integrationist theory purport that data privacy should be included in an antitrust review when privacy is a parameter of a product or service and its quality is affected by competition. Given that data privacy has been a trending factor in antitrust litigation, it is crucial for privacy and antitrust experts to work together in order to comprehend the scope of privacy in antitrust review.
Examples of recent cases that involve the budding intersection between privacy and antitrust, specifically using data privacy as a sword or shield against antitrust liability, include HiQ Labs, Inc. v. LinkedIn Corp., Epic Games, Inc. v. Apple, Inc., Klein v. Facebook, Inc., and United States v. Google LLC, a majority of which are still pending. As for the aftermath of such litigation, we can expect to see government antitrust regulators beginning to weave privacy into their review and enforcement given President Biden’s recent appointments. We should also expect to see courts and judges accepting privacy claims and defenses in antitrust litigation. However, it is unlikely that such litigation will affect large technology firms’ corporate practices, especially firms whose business models rely on collecting and selling user data. Though still in an early stage, the nascent intersection between privacy and antitrust can be expected to grow in the following years.