Antitrust & Privacy

Abstract

This Chapter discusses the theories behind the call to incorporate privacy into antitrust and identifies some potential legal and economic hurdles to their application. Chief among them are (1) the extent to which privacy is an important dimension of competition; (2) identifying the underlying anticompetitive conduct that gives rise to a reduction in privacy; and (3) understanding that the benefits and costs of data collection are inexorably intertwined, with the net impact of a reduction of privacy on consumer welfare depending on heterogenous tastes for privacy and customization that are likely to be correlated in complex ways. Further, this Chapter also addresses potential First Amendment issues raised by using antitrust to condemn certain types of data collection and use, as well as problems that may arise to the extent that incorporating privacy into antitrust renders liability standards more uncertain.