Big tech regulation needs both privacy and antitrust reform

A better understanding of the intersection between data privacy and antitrust laws could lead to more effective regulation of tech giants.

That's according to Erika Douglas, assistant law professor at the Temple University Beasley School of Law. Douglas recently spoke on how data privacy and antitrust laws can rein in the power of tech giants during the American Antitrust Institute's 23rd annual policy conference in Washington, D.C.

Douglas said more work is needed to understand the interactions between the two types of laws, particularly before a federal data privacy law wins approval. There has been recent bipartisan momentum for a federal data privacy bill, the American Data Privacy and Protection Act, also known as the "three corners" bill.    

In this Q&A, Douglas discusses why a better understanding of the intersection between these two types of laws is critical, particularly for the success of antitrust cases already being brought against large tech companies like Google and Meta, which owns Instagram and Facebook.

Why do you think it's important to discuss the intersection of antitrust and data privacy laws?

Erika Douglas

Erika Douglas: It's a thousand antitrust actions and a thousand different privacy reforms, but until a couple of years ago, there was not very much dialogue between the two of them, particularly in the U.S. There's a bit more of this discussion of how the two work together in the European Union because they have stronger privacy laws and competition laws and it's enforced more often. The U.S. is coming around to these big battles against Google and Facebook. They don't get much attention, but there are allegations in both the Google and the Facebook case that they used their monopoly power to erode privacy. Did they? Is that why privacy was eroded or was privacy eroded for some other reason? There are a lot of questions there.

What might some of the challenges be for antitrust law if a federal data privacy law were enacted?

Douglas: What is interesting here for antitrust is almost all of those statutes, including the three corners bill, are making data privacy more of a right. So are state laws. The flurry of mini General Data Protection Regulations [the European Union privacy law] at the state level are turning privacy into a right. And privacy in the U.S. has been a consumer protection interest, but it hasn't been a right. A right is something different in law, and a right is more difficult for antitrust law to deal with because antitrust law equates everything to quantitative, monetary terms.

But if privacy is a right, I think that's going to be a real challenge for antitrust law, because how do you compare something that's quantifiable in competition to something that is a right or interest? That means we'll have to think a little bit more about exceptions or immunities in between data privacy and antitrust law.

This is going to become an issue if and when the U.S. gets federal omnibus privacy law, which is still a big question mark in people's minds. The three corners bill is definitely progress; it's more bipartisan support than we've seen before.

What other challenges might arise from implementing a federal data privacy law without fully understanding its interaction with antitrust law? 

Douglas: When we do get that privacy law, there will be some big questions. You can see in that bill there's a duty of loyalty [acting in the best interest of users] for example that requires data minimization [limiting user data collection]. But antitrust law is really seeking data flow [greater exchange of data between companies] right now. There are all these proposals for legislation in antitrust law that would mandate interoperability. So how do you reconcile at a policy level and then at a legislative level data minimization on one hand, and data flow on the other hand? There are ways to reconcile them, and there are ways to have interoperability that maintains privacy, but the two legislative arcs seem to be going in different directions.

There has to be better understanding here to have effective digital policy.

As policymakers consider data privacy law and antitrust law reform, should they be taking these conflicts into consideration?

Douglas: You can see some consideration of it for example in Klobuchar's bill, the American Choice and Innovation Online Act, that would impose mandatory [data] interoperability. There is an exception for privacy, but privacy isn't defined. If we think competition is more important than privacy, don't include exceptions. If you're going to include exceptions, what does that mean? Because large digital platforms are going to try to fall within the exceptions related to privacy, which are not defined in the legislation. There's a thin consideration of it on the antitrust side. On the privacy side, there's almost no consideration of antitrust law. To be fair, in the three corners bill, there are exceptions for compliance with other federal law that could, without mentioning antitrust law, potentially apply to antitrust law.

Will a better understanding of the intersection of data privacy and antitrust law ultimately lead to better regulation of digital giants?

Douglas: It definitely will lead to more sophisticated and nuanced regulation that has more chance of success. We've talked about the tension between these two areas, but there are many commonalities. The tensions are a [more complex] digital policy question to answer. They're both seeking to encourage consumer choice, and they're both combatting corporate power. But if they're going to do that in a way that is successful and leads to comprehensive, effective digital policy, we need to think about those escape hatches that are appropriate on each side, or how the law might be used in a way that's unexpected because one side argues there's a conflict. You can see this playing out in cases like Epic vs. Apple, where Apple is engaging in anticompetitive conduct according to the Northern District of California, but Apple then proved data privacy considerations were a justification. It's a useful example. If these two areas of law don't think about their interactions with each other, then big cases against big platforms might be unsuccessful for privacy law reasons. There has to be better understanding here to have effective digital policy.

Editor's note: Responses have been edited for brevity and clarity.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.