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Policymakers, regulators, and litigants are starting to bring privacy into antitrust matters. This is a move beyond the traditional focus on price restraints. Privacy are playing both offensive and defensive purposes, as we wrote recently.*

Antitrust plaintiffs are starting to argue that tech giants unlawfully maintain market power. They argue this minimizes privacy innovation. They argue that if the defendant company faced more competitive pressure, it would develop products with better privacy protection. The United States Department of Justice and several state attorneys general made this argument in their ongoing lawsuit against Google. But for Google’s anticompetitive restrictions, the complaint alleged, Google would be forced to compete against more privacy-oriented search engines, such as DuckDuckGo. The case is currently pending.

Antitrust defendants have also invoked privacy, to defend against allegations of anticompetitive conduct. They have argued, for example, that conduct appearing to limit competition actually increases privacy protection. In Texas v. Google, 15 state attorneys general filed a complaint alleging in part that updates to Google Chrome was anticompetitive as the cookie-restricting technologies were a barrier for others to enter the market. Google argued in its defense that it was responding to consumer privacy expectations, not trying to be anti-competitive. This case is also pending.

Putting it into Practice. Privacy practitioners should prepare for questions from their antitrust colleagues, as companies witness more privacy-based arguments on both sides of antitrust disputes. Government enforcers in particular have signaled that they intend to expand the scope of antitrust law beyond price to include other considerations.

*“Privacy Now Looms Large in Antitrust Enforcement” published by Competition Law360 on Sept. 20, 2021. Reprinted with permission of Portfolio Media, Inc.