By Maureen K. Ohlhausen –
The debate about data-rich tech companies has led to calls for changes to consumer privacy law, competition law, or both. Europe has adopted the General Data Protection Regulation, limiting the collection, use, and sharing of consumer data, which may raise competitive hurdles for some players. It also includes a data portability requirement, which may reduce lock-in and spur competition. Some have also advocated using competition law to impose new controls and obligations on entities that collect consumer data. U.S. antitrust law has considered data about and generated by consumers in merger cases and has even imposed data sharing as a remedy. There are calls to go further and treat consumer data as an essential facility and force big tech companies to share it. The essential facilities theory is in tension with the premises behind new privacy laws, which are that there is an abundance of consumer data and that consumers want less, not more, sharing of their data. This article explores the challenges and limits to these theories and the tension they create between reducing and wideningaccess to consumer data. Can privacy and competition values live in harmony as friends, will some of these proposals make them enemies, or is it a bit of both?