A better understanding of the intersection between data privacy and antitrust laws could lead to more effective regulation of tech giants.
That's according to Erika Douglas, assistant law professor at the Temple University Beasley School of Law. Douglas recently spoke on how data privacy and antitrust laws can rein in the power of tech giants during the American Antitrust Institute's 23rd annual policy conference in Washington, D.C.
Douglas said more work is needed to understand the interactions between the two types of laws, particularly before a federal data privacy law wins approval. There has been recent bipartisan momentum for a federal data privacy bill, the American Data Privacy and Protection Act, also known as the "three corners" bill.
In this Q&A, Douglas discusses why a better understanding of the intersection between these two types of laws is critical, particularly for the success of antitrust cases already being brought against large tech companies like Google and Meta, which owns Instagram and Facebook.
Why do you think it's important to discuss the intersection of antitrust and data privacy laws?
Erika Douglas: It's a thousand antitrust actions and a thousand different privacy reforms, but until a couple of years ago, there was not very much dialogue between the two of them, particularly in the U.S. There's a bit more of this discussion of how the two work together in the European Union because they have stronger privacy laws and competition laws and it's enforced more often. The U.S. is coming around to these big battles against Google and Facebook. They don't get much attention, but there are allegations in both the Google and the Facebook case that they used their monopoly power to erode privacy. Did they? Is that why privacy was eroded or was privacy eroded for some other reason? There are a lot of questions there.
What might some of the challenges be for antitrust law if a federal data privacy law were enacted?
Douglas: What is interesting here for antitrust is almost all of those statutes, including the three corners bill, are making data privacy more of a right. So are state laws. The flurry of mini General Data Protection Regulations [the European Union privacy law] at the state level are turning privacy into a right. And privacy in the U.S. has been a consumer protection interest, but it hasn't been a right. A right is something different in law, and a right is more difficult for antitrust law to deal with because antitrust law equates everything to quantitative, monetary terms.
But if privacy is a right, I think that's going to be a real challenge for antitrust law, because how do you compare something that's quantifiable in competition to something that is a right or interest? That means we'll have to think a little bit more about exceptions or immunities in between data privacy and antitrust law.
This is going to become an issue if and when the U.S. gets federal omnibus privacy law, which is still a big question mark in people's minds. The three corners bill is definitely progress; it's more bipartisan support than we've seen before.
What other challenges might arise from implementing a federal data privacy law without fully understanding its interaction with antitrust law?
Douglas: When we do get that privacy law, there will be some big questions. You can see in that bill there's a duty of loyalty [acting in the best interest of users] for example that requires data minimization [limiting user data collection]. But antitrust law is really seeking data flow [greater exchange of data between companies] right now. There are all these proposals for legislation in antitrust law that would mandate interoperability. So how do you reconcile at a policy level and then at a legislative level data minimization on one hand, and data flow on the other hand? There are ways to reconcile them, and there are ways to have interoperability that maintains privacy, but the two legislative arcs seem to be going in different directions.
There has to be better understanding here to have effective digital policy. Erika DouglasAssistant law professor, Temple University Beasley School of Law
As policymakers consider data privacy law and antitrust law reform, should they be taking these conflicts into consideration?
Douglas: You can see some consideration of it for example in Klobuchar's bill, the American Choice and Innovation Online Act, that would impose mandatory [data] interoperability. There is an exception for privacy, but privacy isn't defined. If we think competition is more important than privacy, don't include exceptions. If you're going to include exceptions, what does that mean? Because large digital platforms are going to try to fall within the exceptions related to privacy, which are not defined in the legislation. There's a thin consideration of it on the antitrust side. On the privacy side, there's almost no consideration of antitrust law. To be fair, in the three corners bill, there are exceptions for compliance with other federal law that could, without mentioning antitrust law, potentially apply to antitrust law.
Will a better understanding of the intersection of data privacy and antitrust law ultimately lead to better regulation of digital giants?
Douglas: It definitely will lead to more sophisticated and nuanced regulation that has more chance of success. We've talked about the tension between these two areas, but there are many commonalities. The tensions are a [more complex] digital policy question to answer. They're both seeking to encourage consumer choice, and they're both combatting corporate power. But if they're going to do that in a way that is successful and leads to comprehensive, effective digital policy, we need to think about those escape hatches that are appropriate on each side, or how the law might be used in a way that's unexpected because one side argues there's a conflict. You can see this playing out in cases like Epic vs. Apple, where Apple is engaging in anticompetitive conduct according to the Northern District of California, but Apple then proved data privacy considerations were a justification. It's a useful example. If these two areas of law don't think about their interactions with each other, then big cases against big platforms might be unsuccessful for privacy law reasons. There has to be better understanding here to have effective digital policy.
Editor's note: Responses have been edited for brevity and clarity.
Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for theWilmington StarNewsand a crime and education reporter at theWabash Plain Dealer.
Read this article:
Big tech regulation needs both privacy and antitrust reform - TechTarget
- 2023 Boosts Big Techs AI monopoly? Google, Microsoft, Nvidia, and others wield money power - HT Tech - January 2nd, 2024 [January 2nd, 2024]
- Alphabet (GOOGL) and Meta Shows Power of Ads Over Subscriptions - Bloomberg - January 2nd, 2024 [January 2nd, 2024]
- Looking Beyond The 'Magnificent 7' Analysts Just Upgraded These Three Large-Cap Stocks - Anheuser-Busch - Benzinga - January 2nd, 2024 [January 2nd, 2024]
- Mapping the Biggest Tech Talent Hubs in the U.S. and Canada - Visual Capitalist - January 2nd, 2024 [January 2nd, 2024]
- Google, Meta, other tech giants slash DEI-related jobs, resource groups in 2023: Report - Fox Business - January 2nd, 2024 [January 2nd, 2024]
- South Koreas proposed tech regulations would be a gift to China - The Hill - January 2nd, 2024 [January 2nd, 2024]
- Outlook 2024: Big changes to expect in personal tech - The Indian Express - January 2nd, 2024 [January 2nd, 2024]
- Big Tech Dumped $17 Billion Into AI Companies in 2023 Despite Frozen Market - The Messenger - January 2nd, 2024 [January 2nd, 2024]
- Why OpenAI signals the start of the post-Christensen startup world - Tech.eu - January 2nd, 2024 [January 2nd, 2024]
- Opinion | Lindsey Graham and Elizabeth Warren: When It Comes to Big Tech, Enough Is Enough - The New York Times - July 29th, 2023 [July 29th, 2023]
- Globe editorial: Canada can't tackle Big Tech on its own - The Globe and Mail - July 29th, 2023 [July 29th, 2023]
- July jobs report and more Big Tech earnings are in the week ahead after markets notch historic run for Dow - CNBC - July 29th, 2023 [July 29th, 2023]
- A Setback in the F.T.C.'s Fight Against Big Tech - The New Yorker - July 29th, 2023 [July 29th, 2023]
- Be strong in the fight against Big Tech, Canada - Canada's National Observer - July 29th, 2023 [July 29th, 2023]
- Decoding volatility: Are big tech stocks as stable as we think? - CryptoSlate - July 29th, 2023 [July 29th, 2023]
- Patients think their health data will be leaked and don't trust big tech ... - Contemporary Pediatrics - July 29th, 2023 [July 29th, 2023]
- The Role of Artificial Intelligence in Big Tech Earnings Season - Fagen wasanni - July 29th, 2023 [July 29th, 2023]
- The problem with Big Tech's voluntary AI safety commitments - Emerging Tech Brew - July 29th, 2023 [July 29th, 2023]
- How the Crypto Market Prepares Ahead of Big Tech Earnings ... - BeInCrypto - July 29th, 2023 [July 29th, 2023]
- Tony Anscombe: It's Misleading to Ask if Big Tech Wants to Read ... - BroadbandBreakfast.com - July 29th, 2023 [July 29th, 2023]
- The Week Ahead: Fed, ECB and BoJ set rates, and Big Tech ... - Financial Times - July 29th, 2023 [July 29th, 2023]
- China's Big Tech making a comeback with Beijing offering fresh ... - The Straits Times - July 29th, 2023 [July 29th, 2023]
- Montgomery County school district sues Big Tech over youth mental ... - Washington Times - June 18th, 2023 [June 18th, 2023]
- Big Tech knows most Brits don't know how to protect their online ... - TechRadar - June 18th, 2023 [June 18th, 2023]
- The time for talk is over is time for action on data privacy - The Hill - June 18th, 2023 [June 18th, 2023]
- Meet the man calling out Big Techs climate hypocrisy - Corporate Knights Magazine - June 18th, 2023 [June 18th, 2023]
- Letter: UK watchdog's tough stance on Big Tech should reassure MPs - Financial Times - June 18th, 2023 [June 18th, 2023]
- Peter Thiel on Big Tech: A Throwback Lecture - Walter Bradley Center for Natural and Artificial Intelligence - June 18th, 2023 [June 18th, 2023]
- Big Tech Is Big Tobacco - The Lever - May 6th, 2023 [May 6th, 2023]
- Graham fires warning shot at Big Tech: Were going to unleash the courtrooms of America on you - Fox News - May 6th, 2023 [May 6th, 2023]
- Experts weigh the current cost of anticompetitive behavior in Big ... - NYU Law - May 6th, 2023 [May 6th, 2023]
- Big Tech lobbying on AI regulation as industry races to harness ... - Center for Responsive Politics - May 6th, 2023 [May 6th, 2023]
- 'Big Tech is knowingly fueling a mental-health crisis in this country ... - Morningstar - May 6th, 2023 [May 6th, 2023]
- EY's Abandoned Split Exposes Obstacles to Big Tech Consulting - Bloomberg Tax - May 6th, 2023 [May 6th, 2023]
- Apple CEO Tim Cook calls mass layoffs a last resort, as the company avoids the giant job cuts of its Big Tech peers - Yahoo Finance - May 6th, 2023 [May 6th, 2023]
- Big Tech stocks are flying! Which ones are the best buys today? - Motley Fool UK - May 6th, 2023 [May 6th, 2023]
- Why Indian start-ups have accused the Internet and Mobile Association of India of spreading Big Tech propaganda - The Indian Express - May 6th, 2023 [May 6th, 2023]
- Intimate Images Protection Update Big Tech Warned To Be Ready ... - BC INJURY LAW - May 6th, 2023 [May 6th, 2023]
- Apple Stock and Big Tech Are Winners. Why Cathie Wood's ARK Is Still a Loser. - Barron's - May 4th, 2023 [May 4th, 2023]
- White House officials will meet Big Tech CEOs as President Biden looks to tackle AI safety concerns - Yahoo Canada Finance - May 4th, 2023 [May 4th, 2023]
- The top 10 buzziest companies Gen Z wants to work fornone of them are in Big Tech, says new report - CNBC - May 4th, 2023 [May 4th, 2023]
- Apple Reports Earnings Today. What to Expect. - Barron's - May 4th, 2023 [May 4th, 2023]
- Big Tech Earnings: Time to Take Another Bite of Apple? - Yahoo Finance - May 4th, 2023 [May 4th, 2023]
- Vibe Check: Big Tech Is Losing Its 'Luster' For The Class Of 2023 Amid Mounting Layoffs And An Uncertain Economy - Forbes - May 4th, 2023 [May 4th, 2023]
- Lindsey Graham says Big Tech will kill online child safety bill, teases plan with Elizabeth Warren - Washington Times - May 4th, 2023 [May 4th, 2023]
- 'Break them open' new EU rules coming for Big Tech - TNW - May 4th, 2023 [May 4th, 2023]
- EY's Abandoned Split Exposes Obstacles to Big Tech Consulting - Bloomberg Law - May 4th, 2023 [May 4th, 2023]
- Open Source Communities Need More Than Funding From Big Tech - DevOps.com - May 4th, 2023 [May 4th, 2023]
- Night School, Class 3: Big Tech vs the insurgents - Financial Times - May 4th, 2023 [May 4th, 2023]
- MM View: The Big Tech monster is coming for you - but only if you let it - Money Marketing - May 4th, 2023 [May 4th, 2023]
- Big Tech has eviscerated America's patent system The Gilmer Mirror - Gilmer Mirror - May 4th, 2023 [May 4th, 2023]
- We need regulators with teeth to fight Big Tech monopolism - The Spectator Australia - May 4th, 2023 [May 4th, 2023]
- IAMAI showdown: Start-ups explore other lobby groups to fight Big Tech dominance - Moneycontrol - May 4th, 2023 [May 4th, 2023]
- Snap and Amazon Q1 Shows Big Tech's Advertising Advantage - The Information - May 4th, 2023 [May 4th, 2023]
- How big tech is undermining women's reproductive rights in ... - San Francisco Chronicle - May 4th, 2023 [May 4th, 2023]
- Opinion: Failure to regulate artificial intelligence will entrench Big ... - The Globe and Mail - May 4th, 2023 [May 4th, 2023]
- Tech layoffs: Yes, there's a better way to fire people. Is Big Tech doing it? No way. - Yahoo Finance - March 31st, 2023 [March 31st, 2023]
- As Big Tech cuts workers, other industries are desperate to hire them - February 18th, 2023 [February 18th, 2023]
- Worlds 22 Biggest Tech Companies of 2023 - UserGuiding - February 18th, 2023 [February 18th, 2023]
- Big techs supersized ambitions | The Economist - February 18th, 2023 [February 18th, 2023]
- House Judiciary Committee chair Jim Jordan subpoenas big tech CEOs over user speech - CBS News - February 18th, 2023 [February 18th, 2023]
- At Tesla and Other Big Tech Firms, Its Not the Machines But the Assumptions Behind Them Causing Problems - Forbes - February 18th, 2023 [February 18th, 2023]
- Big Tech earnings face more heat as cloud cover fades | Reuters - February 5th, 2023 [February 5th, 2023]
- Big Tech earnings face more heat as cloud cover fades - February 5th, 2023 [February 5th, 2023]
- Big Tech on defense: Apple, Amazon and Google report earnings - CNN - February 5th, 2023 [February 5th, 2023]
- Californias new gold rush: Big tech moves to gain the edge in AI - The Indian Express - February 5th, 2023 [February 5th, 2023]
- Big (1988) - IMDb - January 25th, 2023 [January 25th, 2023]
- Big (film) - Wikipedia - January 25th, 2023 [January 25th, 2023]
- Dow books third straight day of gains, but Nasdaq and S&P 500 end lower as investors await big tech earnings - MarketWatch - January 25th, 2023 [January 25th, 2023]
- Google Layoffs: Big Tech Continues Downsizing - forbes.com - December 28th, 2022 [December 28th, 2022]
- Here Comes More Censorship: Rachel Levine Pressuring Big Tech to Shut ... - December 28th, 2022 [December 28th, 2022]
- Preserve local journalism by holding Big Tech accountable - December 21st, 2022 [December 21st, 2022]
- Fauci testimony 'confirms' Big Tech collusion to censor free speech on ... - December 21st, 2022 [December 21st, 2022]
- How big tech defeated the biggest antitrust push in decades on Capitol Hill - Los Angeles Times - December 21st, 2022 [December 21st, 2022]
- J6 Witch Hunt Is What Happens When Big Tech And Feds Team Up - December 12th, 2022 [December 12th, 2022]
- Big Tech, Big Fines | ZeroHedge - December 12th, 2022 [December 12th, 2022]
- Court: Psaki Must Testify Over White House's Big Tech Collusion - December 12th, 2022 [December 12th, 2022]
- Big Tech shows off its AI | Financial Times - December 12th, 2022 [December 12th, 2022]
- Big Tech and governments are fighting the fake reviews industry. India is gearing up too. - Economic Times - December 12th, 2022 [December 12th, 2022]
- VOTE: Do you trust Big Tech platforms to treat all points of view fairly? - ABC6OnYourSide.com - December 12th, 2022 [December 12th, 2022]