Recognizing and Dealing with the Tension between Competition and Privacy Policies

By Matthew Lane, Project Disco

Tech policy is in a moment of conflict. Some folks are calling for data to be shared to increase competition, while other folks are asking for far greater restrictions on data to improve privacy. We can serve both needs, privacy and competition, but we first need to have a conversation about how these policy needs interact and we may need to find less obvious solutions to the unique problems caused by clashing policies. 

A starting point is to recognize that privacy and competition remedies can run in conflict with each other. A way to promote privacy might be to limit access to information as much as possible. It’s like keeping a secret: the fewer number of people who know, the fewer the opportunities for the secret to get out. This is how we often deal with privacy concerns: through regulations like the Video Privacy Protection Act that restrict access to sensitive information. However, a potential way to promote competition might be to lower barriers of entry by increasing access to inputs. For example, antitrust agencies have long used compulsory licensing of intellectual property as a remedy. Similarly, data portability is currently being examined as a way to make it easier for consumers to change services thereby increasing competition. A specific example is the ACCESS Act introduced by Senators Warner, Hawley, and Blumenthal.

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