US antitrust remedies and data privacy

Erika M. Douglas

Chapter 15 in Research Handbook on Data, Privacy and Competition Law, 2025, pp 355-381 from Edward Elgar Publishing

Abstract: This chapter explores the relationship between antitrust remedies and data privacy in US law and policy. Section 1 begins with an introduction to the basics of US antitrust law and remedies. Antitrust law works to restore and preserve competition, while US data privacy law primarily seeks to provide individuals with control over the processing of their personal information. Competition and data privacy are increasingly intertwined in the digital economy, as data privacy law expands outward and antitrust law turns its attention to data-driven competition. Section 2 considers antitrust remedies that purposefully seek to affect data privacy. It argues that antitrust courts and agencies are bounded in their intervention into privacy by the relevance of competition. These institutions have the power to impose antitrust remedies that restore privacy-based competition, but not to use antitrust remedies to cure standalone privacy harms, unrelated to competition. Section 3 then considers the unintended side effects that antitrust remedies may have on data privacy, both positive and negative. Even antitrust remedial orders that are not designed to impact data privacy may do so, by virtue of their intervention into how personal data is collected, used, or sold. This section argues that antitrust institutions can and should design antitrust remedies to reduce unnecessary, negative side effects on data privacy. They have the power to do so, provided one important condition is met—the antitrust remedy remains effective in restoring or preserving competition, despite any accommodation of privacy interests.

Keywords: Competition; Antitrust; Privacy; Data protection; Remedy; Consent decree; Equitable; Federal Trade Commission; Department of Justice; Antitrust Division (search for similar items in EconPapers)
Date: 2025
ISBN: 9781802202328
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