The Privacy and Antitrust Paradox in the Age of Data

At first blush, antitrust and data privacy would seemingly have little to do with one another, each content to operate in their respective spheres. Yet, over the last few years, data has steadily brought these two spheres together. In a guest article, Proskauer attorneys Colin Kass, Ryan Blaney, David Munkittrick and Kelly Landers Hawthorne explain how, on one hand, defendants are using privacy as a procompetitive rationale in the face of accusations of anticompetitive conduct, while, on the other, plaintiffs and regulators are starting to target privacy practices as potentially anticompetitive. The authors explore the current state of data and privacy in antitrust, examining how, to borrow from duty-to-deal jurisprudence, privacy may be “at or near the outer boundary” of antitrust liability. See “How Do You Put a System of Privacy and Security Controls in Place When Your Target Keeps Moving?” (May 26, 2021).

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