Competition, Consumer Protection, and the Right (Approach) to Privacy

Many people view Samuel Warren and Louis Brandeis’s 1890 work, The Right to Privacy, as the starting point for the consumer privacy laws in the United States. Warren and Brandeis’s concerns about the ability of technology to invade the private sphere continue to resonate today, 125 years later. The technology encroaching on privacy now is, of course, the Internet – or, to be more precise, the technologies that permit the tracking and aggregation of individual consumers’ online behavior and that support the many services that financially sustain the broader Internet ecosystem. As was the case in Warren and Brandeis’s day, numerous proposals have surfaced for how to defend expectations of personal privacy while still realizing the benefits of commercialized technology. Those defending free market principles argue that the best solution is little-to-no government intervention – consumer demand for privacy will create a market for privacy protections. Other commentators propose increased governmental scrutiny of the collection and use of consumer data online, and some even advocate unifying the competition and consumer protection laws to examine privacy through a competition lens. We focus this paper on evaluating this last proposal. This article proceeds in three main parts. We begin with the historical development of privacy protections in the United States and the tension between privacy concerns and the growing value of consumer data in the digital arena. Next, we explore how the agencies and courts have applied the FTC Act and antitrust law in this area over the years and the reasoning behind the bifurcation of the FTC Act into separate spheres of competition and consumer protection law. This explains the historical separation of privacy as a consumer expectation from commercialized privacy and data. Third, we synthesize analytical factors from the historical approaches to privacy and offer them as guidance for distinguishing between competition and consumer protection issues at the intersection of competition law, consumer protection law, and privacy.