When large technology companies, known as "Big Tech," became prevalent, they engendered tremendous debate in antitrust circles. On one hand, many of the companies seemed to vanquish competition using methods that could hardly be described as fair or meritorious. But the problem with harnessing antitrust enforcement was that most tech markets appear to be innovative, high-quality, and cheaply priced (one could even say "free"). Since anticompetitive conduct must render high prices, diminished innovation, eroded quality, or otherwise harm "consumer welfare" to offend antitrust law, Big Tech was able to dodge antitrust scrutiny-for a while anyway.
Given the seemingly anticompetitive behaviors of Big Tech, yet ability to skirt antitrust liability, commentators, courts, scholars, enforcers, and even Congress sought to reassess antitrust enforcement for the twentyfirst century. Perhaps Big Tech was harming consumers in new ways. Front and center to reimagining antitrust law was the theory that privacy entails a facet of consumer welfare. In light of how Big Tech is thought to evade users' privacy or even manipulate them, the emerging theory was that privacy should constitute a facet of quality and, as a result, form the basis of antitrust lawsuits against Big Tech.
Remarkably, this debate occurring in universities moved to courtrooms, federal agencies, and Congress. After the U.S. Senate held hearings on Big Tech and federal enforcers noted the privacy harms of tech monopolies, the government initiated the first lawsuits against Big Tech predicated, not on high prices, but reduced privacy. These lawsuits have, however, yet to produce success.
So where do we stand? Was the idea that privacy should play a larger role-or any role-in enforcement a loser? Should it be reworked to spawn another round of lawsuits against Big Tech? Does the empirical record suggest that privacy is a function of competition as scholars and enforcers have proposed? Or has this all been a function of a populist effort to "get" Big Tech despite its lack of threat to consumer welfare?
Antitrust Privacy, Revisited,
Loy. Consumer L. Rev.
Available at: https://lawecommons.luc.edu/lclr/vol34/iss3/3