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

Posted by Social Science Research Network

Competition, Consumer Protection, and the Right (Approach) to Privacy–  Maureen K. Ohlhausen (Federal Trade Commission) & Alexander Okuliar (Federal Trade Commission)

Abstract: 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.