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November 11, 2024 - Article

Privacy-Enhancing Technologies and the Sherman Act

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The article covers what privacy-enhancing technology (PETs) are and the evolution of data privacy and antitrust.

“PETs frequently have been viewed as raising consumer protection issues within the purview of Section 5 of the FTC Act,” they write. “Consistent with this perception, the FTC has brought numerous enforcement actions against companies arising out of alleged misrepresentations about the use and strength of data security. These cases have arisen from data breaches and the subsequent exposure of the respondents’ failure to use reasonable or appropriate security measures.”

Concerning antitrust matters, Jen, Eric, and Nayeli noted “antitrust authorities have started to embrace an ‘integrationist approach’ to data privacy and antitrust…[w]ith the integrationist approach, PETs may have one of several different roles in an antitrust analysis.” These roles include, “a non-price element of competition,” “a cost that would have to be borne as a result of regulation or consumer preference,” and “may be used to unlawfully entrench a dominant position.” Read the article.