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When most people think of antitrust, they think of money: collusive deals to fix the price of a computer component or even tuna, or an abuse of market dominance that sticks consumers with a more expensive (and perhaps inferior) product. But in a brave new world where personal data is every bit as valuable as currency, is privacy the next frontier in antitrust litigation?

It’s an idea that’s getting increasing attention—particularly in Europe. Margrethe Vestager, the EU Competition commissioner, said in a speech last fall that EU regulators “need to start looking at mergers with valuable data involved.” U.S. Federal Trade Commission acting Chairwoman Maureen Olhausen co-authored a paper on the notion of guarding consumer privacy through antitrust law, and Wired magazine more recently declared in a headline that “Digital Privacy Is Making Antitrust Interesting Again.” The Recorder spoke with several defense and plaintiffs attorneys about how data-related dealmaking could actually lead to an enforcement action or civil antitrust litigation. While it may not be on the immediate horizon, here are three ways the issue could come before the courts:

Colluding for Weaker Privacy

You know those privacy policies—the ones that you barely skim past as you click to create an account for a new app on your phone. For those who are more privacy-conscious, though, there is at least the appearance of choice. Apple Inc. boasts that unlike some other tech giants you may know, “we don’t use a persistent personal identifier to tie your searches to you in order to build a profile based on your search history.”

But what if that wasn’t the case? What if some companies reached a deal where they would all give consumers the same watered-down privacy protections—and never offer to forgo reselling your data to third parties? “One way that privacy could fit into that [antitrust] framework is if you have an agreement not to compete on the privacy terms that are being offered,” said Daniel Birk, a partner at Eimer Stahl in Chicago who counsels companies on both privacy and antitrust issues. That would be similar to a price-fixing arrangement, just on nonprice attributes, and could arguably be a violation under Section 1 of the Sherman Act.

Any privately brought civil case along those lines would likely face a challenge over standing. How would consumers measure the economic harm from not having access to digital products with stronger privacy policies, especially when many of those products are offered for free?

Fewer Choices for the Privacy-Conscious

In a similar vein, imagine a scenario where one large tech company acquires a smaller one, and in so doing wipes out a competitor that offered stronger privacy protections. This was one of the fears voiced by consumers when Facebook acquired WhatsApp—prompting the FTC to send the social networking giant a friendly reminder about adhering to WhatsApp’s privacy policies.

Another possible example would be if, following the rollback of Federal Communications Commission rules on privacy, such giants as Comcast started snapping up companies offering virtual private network (VPN) services in order to expand their reach over users’ data, said David Berger, an attorney with Girard Gibbs in Oakland. But any case challenging that kind of merger activity would turn on the reduction in competition, and not any alleged loss of privacy by consumers, he explained.

“That’s absolutely an abuse of power, but it’s still not focusing on data privacy,” said Berger, who is currently litigating the Anthem data breach and Vizio Smart TV privacy cases in federal court. “Much of that is because U.S. antitrust [law] focuses so much on price or barriers to entry to a market as the primary measure of antitrust injury.”

Market Dominance Over Data

The other way that privacy and antitrust could intersect is if a company gained control of such a vast amount of personal data that it was in a position of market dominance and could abuse its power. That might be the case if the data was necessary to offer certain services—giving the controller sole power over prices—or allowed that company alone to offer a certain product. (The FTC looked into related issues when Google bought advertising server DoubleClick Inc.)

The EU’s antitrust legal framework actually allows regulators to place special obligations on dominant market players, such as providing favorable pricing terms for competitors, Birk said. In the U.S., having cornered the market isn’t necessarily illegal, but it is if you use “unreasonable” tactics to create a monopoly. But it’s far from clear what would qualify in this scenario.

What about buying smaller companies that aren’t direct competitors, just for the data they hold? “It raises a whole new set of interesting questions about how you define competition,” said Birk.