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Privacy Now Looms Large in Antitrust Enforcement

 |  September 30, 2021

By: Michael W. Scarborough, David Garcia and Kevin Costello (Sheppard Mullin)

Until very recently, if you asked an antitrust lawyer what privacy has to do with their practice, there is a good chance you’d get back a blank stare or a “not much.”

For decades, American antitrust law has been dominated by the Chicago School, which, as Robert Bork explains in his 1978 book “The Antitrust Paradox: A Policy at War with Itself,” posits consumer welfare as the primary — if not exclusive — goal of antitrust.

Under the consumer welfare standard, antitrust’s guiding light has been achieving what Tim Wu in “The Curse of Bigness, Antitrust in the New Gilded Age,” calls “the lowest price for consumers” — even at the expense of competing policy goals, such as economic inequality, consolidation of political power and yes, privacy.

Take, for example, National Society of Professional Engineers v. United States in 1978, in which the U.S. Supreme Court determined that while the consumer welfare standard encompasses not merely a product’s immediate price, but “all elements of a bargain — quality, service, safety and durability.”

Facially, it has never been clear under the Chicago School that privacy drives much if any antitrust analysis.

That is now changing. As market shares consolidate in several key industries — technology perhaps chief among them — longstanding assumptions in antitrust are now being challenged, such as in the recent legislation package floated in the U.S. House aimed at reining in large technology companies and restoring competition in digital markets…