Antitrust theory portrays data privacy as a factor, like quality, that improves with competition. This Essay argues that view is an incomplete account of the new interface between antitrust and data privacy. The more complex reality is that, over the last twenty-five years, data privacy has also become a separate area of legal doctrine. In that capacity, data privacy law may clash at the margins with antitrust – much like intellectual property or consumer protection law did before it. The Essay sheds new light on this tension at the interface of antitrust and data privacy. It provides a descriptive, historical and comparative account of the friction emerging between these areas of law in the digital economy, where data access can both drive competition and reduce privacy. The Essay then lays out a new approach to analyze claims of conflicting data privacy and competition interests, one that emphasizes the accommodation of both areas of law.
Douglas, Erika, The New Antitrust/Data Privacy Law Interface (January 18, 2021). 647 The Yale Law Journal Forum, January 18, 2021, https://www.yalelawjournal.org/masthead/volume-130.