Document Type

Article

Journal Title

Harvard Journal of Law and Technology

Volume

36

First Page

359

Publication Date

Spring 2023

Abstract

The dominance of digital giants like Amazon and Google has revived interest in antitrust law, with members of the “New Brandeis” movement taking the lead. Neo-Brandeisians are now well represented across the most important positions in the federal government, and their ideas are already reflected in ongoing litigation and proposed legislation regarding Big Tech. But this movement is also a marked departure from prevailing antitrust theory and caselaw, which focus on consumer welfare (as measured by efficiency, output, and prices). Neo-Brandeisians instead focus on market concentration itself, exhibit skepticism toward efficiency-based justifications, and use competition law to pursue broader policy goals — in particular, enhanced consumer privacy. The structuralism and interventionism that define the New Brandeis movement, however, risk undermining consumer privacy just as much as they promise to enhance it. In short, privacy and competition are not always in a positive relationship with each other. On the contrary, from the “privacy paradox” to externalities to economies of scale, the nature of digital spaces frequently creates tension between the two. Reducing market concentration may lead to or require greater privacy intrusions; importing privacy concerns into antitrust would undermine the law’s clarity and efficacy; and legitimizing competition over privacy is apt to disproportionately harm vulnerable populations. To some extent, this is a privacy-specific problem, but it also suggests larger issues with the neo-Brandeisians’ intentions of pursuing broader social goals that do not naturally follow from enhanced market competition. To mitigate these risks, this Article concludes with suggestions for antitrust enforcers and policymakers going forward.

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