On February 26, 2019, the Federal Trade Commission’s (FTC) Bureau of Competition announced a new Technology Task Force, which will monitor anticompetitive conduct in U.S. technology markets “to ensure consumers benefit from free and fair competition.” With the consumer protection agency already a chief arbiter of privacy enforcement in the tech sector, the new task force increases the likelihood that the continued convergence between competition and consumer protection policy, which began in earnest at the dawn of the current century, may be gaining momentum.
German approach. The announcement comes just a few weeks after Germany’s antitrust regulator used its competition authority to enforce principles of data privacy and processing. On February 7, 2019, the Bundeskartellamt issued a decision against Facebook, ruling that the practice of combining user personal data from different sources by a dominant market participant violated EU data protection law. This was a noteworthy decision from a competition authority being influenced by and seeking to enforce the General Data Protection Regulation, which would otherwise be enforced by data protection authorities. The decision is not yet final, but if upheld it could have the notable impact of limiting the data footprint used to inform advertising, and may influence regulators’ willingness to use competition law to buttress limitations placed on the flexibility of data collectors and processors. Please see our previous client alert on the Facebook ruling. If this approach informs the FTC’s position on competition and privacy enforcement, it could extend a trend of regulators outside the data protection sphere using broader authority as a bridge to enforce privacy issues against companies they view to have a dominant market position.
Looking ahead in the United States. The FTC made no direct mention of consumer privacy in its release announcing the Technology Task Force and instead highlighted the need to “closely examine technology markets to ensure consumers benefit from free and fair competition” as an extension of is ongoing Hearings on Competition and Consumer Protection in the 21st Century. However, the task force will be composed of staff attorney experts in areas including online advertising, social networking, mobile operating systems and apps, and platform businesses, all of which define a sizable portion of their respective markets through consumer data. Additionally, “The FTC’s Approach to Consumer Privacy” is scheduled as part of those hearings on April 9–10, 2019, and it will be interesting to see what role, if any, the newly created task force might have in that approach. Whether this new development will signal increased use of and reliance upon economic and cost-benefit analysis and an expansion of consumer welfare thinking at the FTC remains to be seen. However, recent calls from Congress make clear that U.S. legislators have an increasing appetite to use the tools of the FTC and competition policy in novel ways to address concerns about “big tech.”
- https://www.rollcall.com/news/gigantism-facebook-google-amazon-antitrust(Rep. David Cicilline (D-RI.) recently noted Congress’ desire to signal to tech companies “that we’re serious about this work” and hailing “a rebirth of aggressive antitrust.”); see also: https://www.politico.com/newsletters/morning-tech/2019/02/27/senate-tees-up-privacy-400802 (Senators Mark Warner (D-Va.) and Ron Wyden (D-Ore.) recently commented that the FTC Task Force “is a long-overdue step by the Commission, which has failed to stay abreast of developments in the digital economy on both the consumer protection and competition fronts”.).