Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Commissioner Brill discusses privacy protection and competition as big data continues to grow, (Jun 2, 2014)

By Greg Hammond, J.D.

With the ever increasing amount of personal information being stored online, the FTC has increased its focus on protecting consumer privacy and competition. In a speech, entitled “Weaving a Tapestry to Protect Privacy and Competition in the Age of Big Data,” delivered today at the European Data Protection Supervisor’s Workshop on Privacy, Consumer Protection and Competition in the Digital Age, FTC Commissioner Julie Brill discussed how the Commission intends to move forward in considering how consumer privacy will play a role in future merger analysis.

Data growth. Commissioner Brill noted that 1.8 trillion gigabytes of data were created in 2011. “That’s equivalent to every U.S. citizen writing three tweets per minute for almost 27,000 years,” she said. It is further predicted that data is expected to double every two years from this point forward. Even more important, according to Brill, is the proliferation of data sources. She noted that there will be an estimated 40-50 billion devices connected to the Internet by 2020, and “by the end of this decade, 40 percent of data floating in cyberspace will come from sensors in our homes, cars, and other gadgets.”

Privacy protection and competition. In response to big data growth and the number of devices that will feed it, Brill stated that consumer privacy protection needs to be “rethought and reinvigorated.” She noted that the FTC is taking a more “textured approach,” as evidenced by its recent report that identified a number of recommendations for Congress to establish legislation regulating data brokers and providing consumers with more access to their data and meaningful choices to protect it.

In addition, Brill noted that there is evidence online companies are beginning to compete based on their privacy promises, which will help naturally increase privacy protection. Online companies such as WhatsApp, Whisper, and Secret have succeeded in growing their businesses by providing consumers with increased measures of privacy along with their products. Consequently, Brill predicts that consumers will increasingly look for services that will enhance their privacy online, thereby increasing privacy competition among companies.

Mergers. Because mergers can negatively affect consumer privacy, according to Brill, antitrust agencies will need to ask the same questions as if a merger affected price competition: “is there evidence of significant pre-merger head-to-head privacy competition between the two firms? Are they particularly close competitors in this regard? Post-merger, would this competition be replaced by competing services or successful new rivals?”

“I look forward to a world where competition on privacy becomes so robust that this dimension of competition becomes baked into antitrust analysis,” Brill said.

News: Privacy ConsumerProtection Antitrust