Review: Antitrust Policy in the Data Economy, Selling Privacy or Just Private Data?

Cite as: 3 GEO. L. TECH. REV. 216 (2018)

For those entrenched in the data privacy profession, it is refreshing to read work that tackles familiar questions, such as those surrounding the value of personal data, through a less familiar lens. The practice of privacy is flourishing because of the many novel challenges sparked by the proliferation of personal data. Questions abound about how best to manage access to personal information, how to control its spread, and how to signal its quality and sensitivity. With such goals in mind, privacy is concerned with minimizing harm to consumers, to institutions, and even to society. Though there can be no perfect solution to these complex issues, it never hurts to consider them through a variety of legal and regulatory regimes. In his book, Antitrust Law in the New Economy, Mark R. Patterson provides a taste of the implications of the battle for control of personal information through an antitrust lens by focusing on the commodification of data.1

Data privacy law, stemming from theories of consumer protection rather than antitrust, usually conceives of the risks of informational harms in a manner that focuses on individual consumers rather than optimal markets. For example, a privacy professional may consider the extent to which a given dataset includes sensitive data elements or whether it could be used to identify individuals. Instead of this focus on the personal nature of information, Patterson’s book is rooted in the notion of “market information.” From this perspective, information—defined broadly—is itself a product that can lead to market failures and other anticompetitive outcomes. The consumer harms that flow from these market failures may go hand-in-hand with privacy harms but may also be entirely unrelated. That is, an entity may acquire market power based on the information it controls, even if this data is not relevant to individual consumers. This serves as a useful reminder that much of the economic value of information may be rooted in factors other than its personal nature.

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Cobun Keegan

Formerly a Westin Research Fellow at the International Association of Privacy Professionals, currently works as the Deputy Director, Privacy Initiatives at the Council of Better Business Bureaus.