Abstract

The past decade has witnessed conceptual renewals in both competition law and information privacy law. These regulatory movements—Neo-Brandeis antitrust and structural data governance—share the objective of recalibrating the balance of power between individuals and the massive data-processing firms that now dominate modern life.

Despite their common ends, policy interventions drawn from these schools of thought can work at cross purposes: competitive pressure can induce data exploitation, and privacy rules tend to benefit the largest firms.

This Essay exposes the friction in their relationship and offers guidance on how to mediate their tension. Competition policy alone will prove ineffective at indirectly disciplining most data activities, so policymakers should largely favor the structural data-governance approach to address the information economy’s pathologies. But pro-competition policies will nevertheless be essential to reining in firms that are too big to meaningfully regulate and may also prove helpful in solving certain discrete data-processing problems. Policymakers today have two distinct mechanisms for disciplining firms’ data-driven activities. This Essay describes them, exposes their contours, and offers those policymakers guidance on how best to deploy them.

ISSN

2766-2403

Additional Information

Symposium Issue

Disciplines

Internet Law | Law | Privacy Law

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