Privacy and Competition: Discord or Harmony?

• Author: Maureen K. Ohlhausen,Ben Rossen
• DOI: http://doi.org/10.1177/0003603X221126140
• Published date: 01 December 2022
• Date: 01 December 2022
• Subject Matter: Articles

https://doi.org/10.1177/0003603X221126140

The Antitrust Bulletin

2022, Vol. 67(4) 552 –561

© The Author(s) 2022

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DOI: 10.1177/0003603X221126140

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Article

Privacy and Competition: Discord

or Harmony?

Maureen K. Ohlhausen* and Ben Rossen*

Abstract

Privacy and competition law pursue different goals that do not always align, but they can be harmonized

under the right approach. Recent proposals in Congress, however, put privacy and competition

values in direct conflict, likely at the expense of consumer privacy. Rather than diminishing consumer

privacy and security through competition legislation, Congress should enact a comprehensive

consumer privacy law that protects consumers while leveling the playing field for all competitors. This

article addresses recent calls to regulate consumer privacy and the commercial use of data through

competition law. First, we address the changing landscape of consumer privacy and calls for additional

regulation. We then discuss recent proposals to use competition law to address issues stemming

from widespread data collection and aggregation. Finally, we describe the collision course of antitrust

and privacy in recent legislative proposals and offer an alternative path forward.

Keywords

privacy, antitrust, competition, American Innovation and Choice Online Act, AICOA, technology,

regulation

I. Introduction

As Congress, state legislatures, and federal agencies continue to debate how to regulate the collection,

sharing, and use of data, calls have grown to reform competition laws, frequently in ways that would

affect consumer privacy. For example, in July 2021, President Biden issued an executive order on pro-

moting competition urging federal agencies to pay closer attention to “unfair data collection and sur-

veillance practices that may damage competition, consumer autonomy, and consumer privacy.”1 The

President further declared it the policy of his administration to enforce the antitrust laws to address

harms from “the aggregation of data, unfair competition in attention markets, the surveillance of users,

and the presence of network effects.”2 At the Federal Trade Commission, Chair Lina Khan has

*Baker Botts L.L.P., Washington, DC, USA

Corresponding Author:

Maureen K. Ohlhausen, Baker Botts L.L.P., Washington, DC 20001-5692, USA.

Email: maureen.ohlhausen@bakerbotts.com

1126140ABXXXX10.1177/0003603X221126140The Antitrust BulletinOhlhausen and Rossen

research-article2022

1. Executive Order on Promoting Competition in the American Economy (hereinafter the Executive Order on Competition),

Whitehouse.gov (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-

order-on-promoting-competition-in-the-american-economy/.

2. Id.