In the absence of a federal data privacy law, a handful of enforcement agencies—both state and federal—are taking stabs at a national data security framework in their own ways.
But with ever-growing troughs of consumer data, the coming years might see one agency in particular killing two birds with one stone: competition and data privacy.
The Federal Trade Commission, under its current chairperson Lina Khan, has released a flurry of press releases and blogs in recent months signaling at a focused commercial surveillance “crackdown.” Now, privacy attorneys note that Khan’s expertise in both data privacy and market dominance, her outward expression of how they are intersecting, and the growing number of antitrust suits against tech companies, lays the groundwork for Big Tech to come under fire from multiple angles. It’s certain at the FTC, data privacy is now viewed through the lens of competition law.
To be sure, attorneys stress that the FTC as a whole has still not settled on any particular way to handle antitrust issues through their proposed privacy regulations, but they suspect that the guidance is brewing behind the scenes. Data privacy attorneys who want to get ahead of the game should brush up on antitrust regulations, and begin determining if the data their clients hold could make them a target.
Christopher Leach, a partner at Mayer Brown and former attorney with the FTC, said a “consistent theme” since Khan’s appointment has been an effort to break down the silos between the Bureau of Competition and the Bureau of Consumer Protection. “In [Khan’s] view, the two are inextricably connected” as the sources of data that larger tech companies possess “might give them advantages over other players in the marketplace” since “companies with more data will be able to compete in ways other companies won’t.”
To be sure, the Federal Trade Commission v. Facebook lawsuit filed in 2020 in the U.S. District Court for the District of Columbia regarding Meta’s acquisition of Instagram and WhatsApp—which was dismissed by the judge and then brought back by Khan—is an obvious example of the FTC’s focus on antitrust enforcement.
But the direct link between competition and data privacy hasn’t yet been made in the FTC’s suits, making it difficult to gauge just how enforcement regulations against the practice might look like.
“I’m not entirely sure how the agency as a whole thinks about the interplay between privacy and competition,” Leach said. “But, I wouldn’t be surprised if [in the future] in antitrust investigations, there were questions about what types of consumer data you have available. Information regarding the company’s views on how that [data] places them in the market. But right now, I think [the FTC] is trying to operationalize that desire from the chair to better integrate consumer protection and competition.”
What Can Attorneys Do Right Now?
While the FTC might be working on a rubric for that integration, other agencies aren’t far behind when it comes to litigating Big Tech from a competition law standpoint. In United States of America v. Google in the U.S. District Court for the District of Columbia, the Justice Department brought an antitrust case against the tech giant in 2020, asserting that Google violated antitrust laws by gaining control over 88% of the domestic search engine market, monopolizing search engine advertising.
Brandi Bennett, an attorney at The Beckage Firm, noted that the Justice Department’s lawsuit against Google, the FTC’s investigation of Amazon, Epic’s lawsuit against Apple, the scrutiny for Amazon’s acquisition of iRobot Corp., and the FTC’s lawsuit against Meta hint at a growing focus on antitrust regulations’ link with data privacy enforcement in the public and private sector.
“I think we are seeing [Khan] exercise her powers at the commission to bring antitrust back into focus. You’re seeing that in the legislature as well, you know, we haven’t enforced antitrust laws in this country in a very long time until now,” Bennett said. “But now, privacy has become increasingly complex [for attorneys] because we are also dealing with technical issues.”
Indeed, for privacy attorneys who are already chasing the growing data privacy laws across states, and working to keep up with compliance ahead of next year’s privacy statutes going into effect, Bennett noted that antitrust laws are going to be yet another space they “they have to play catch-up” in.
“I think they big players know this is coming, they have seen it develop, which is why so many of them were opposed to Khan becoming head of the FTC,” Bennett said. “[But for others], this is a relatively new and complex field. In the coming years, it is going to affect their ability to do M&As, there will be more [scrutiny].”
The increased scrutiny, of course, is because “they won’t just have to think about whether they are taking up too much percentage of the market, but also whether acquiring an adjacent company cements market dominance through the acquisition of those users’ data,” he added.
For now, attorneys stand in a limbo waiting for additional guidance.
Leach noted that the best they can do is begin to “sit down and think through what data your company has, how it benefits the marketplace.” If there is an enforcement scenario, “[they] can explain it, because they understand what their data assets are, and how it does or doesn’t present an anti-competitive situation.”
Reprinted with permission from the September 13, 2022 edition of Legaltech News © 2022 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.