By Benjamin R. Dryden & Shankar (Sean) Iyer –
Under the right conditions, business practices that are good for consumer privacy can come at a cost to competition. This article considers the scenarios where privacy interests and competition might conflict. Specifically, the authors consider the potential economic and legal implications of “privacy fixing” – two competitors agreeing to a common set of privacy practices – as well as “predatory privacy” – a powerful firm’s use of privacy practices to disadvantage rivals. The authors explore how an antitrust case might proceed under either theory, and conclude with remarks about what potential conflicts between privacy interests and competition might mean for businesses, trade associations and consumer protection agencies.
