Privacy Protections Through Antitrust Enforcement

Daniel A. Hanley & Karina Montoya comment on how antitrust enforcement can operate as a vital supplement providing consumers with robust privacy protections, despite the lack of a comprehensive federal law. The authors argue that antitrust enforcement can be used to provide consumers baseline privacy protections by (1) creating a market for privacy protections, (2) targeting specific conduct such as mergers, monopolization, and deception, and (3) courts imposing broad structural remedies inhibiting and deterring future violative conduct.

By Daniel A. Hanley & Karina Montoya^[1]

I. INTRODUCTION

In recent years, powerful technology corporations Google and Meta (the parent company of Facebook) have successfully eluded meaningful regulation by U.S. lawmakers, raising the question of what legal approach would most effectively bring them to heel.^[2] Lawmakers and advocates increasingly consider privacy law and antitrust enforcement as the most potent legal avenues capable of taming Big Tech. Both areas of law are now seen as vehicles for a fundamental restructuring of the technology industry, one that would promote competition, curtail unfair practices such as self-preferencing, break up monopoly power, and provide protections to consumer privacy.

Unlike in other countries,^[3] the United States does not have a general law that protects consumer privacy rights. Instead, privacy regulations exist through a patchwork of narrowly targeted and discrete laws, most of whi