UC Irvine Law Review

From President Biden to the Chair of the Federal Trade Commission, there is dramatic new attention to the overlap between data privacy and competition. Our personal data now fuels the online world, from search and social media to applications and algorithms. While privacy law limits the processing of such data, antitrust law often encourages it to drive online competition. This is creating new interactions—and tensions—between these powerful areas of law.

This Article argues that antitrust law has been too singular in its treatment of data privacy. Antitrust scholars, courts, and agencies cast data privacy the same way across this variety of new interactions: as a quality-like factor that rises and falls with competition. Yet privacy is notoriously pluralistic in its identity. No single definition of data privacy has coalesced in the law, nor is a unitary conception likely to emerge. The Article contends that the cramped antitrust view of data privacy is a significant problem. It leads courts and lawmakers to unexamined preferences for competition over data privacy, which can threaten the already-fragile recognition of harms within privacy law itself.

In particular, the Article explores two seismic shifts underway in U.S. data privacy law—i) the move away from notice and consent toward more prohibitions and duties, and ii) the proliferation of privacy rights. These changes erode the basis on which antitrust reconciles data privacy: a previously-shared assumption that consumers benefit from personal data-driven competition. As a result, these shifts are creating new variety and complexity in how antitrust and privacy law interact.

It argues these changes will press antitrust to develop more pluralistic thinking of what privacy is to antitrust law. The Article proposes a number of important ways in which antitrust can begin to do this, both institutionally and substantively. In particular, it draws analogies to antitrust theory on other incommensurate interests, such as patent rights, free speech rights, and regulation, that, like privacy, can require theories of exception and conflict where they meet antitrust law.