[IP] How privacy fits into antitrust law (Google/DoubleClick)

[David Farber <dave@farber.net>]

Title: How privacy fits into antitrust law (Google/DoubleClick)

-----Original Message-----
From: Peter Swire [mailto:peter@peterswire.net]
Sent: Fri 10/19/2007 12:06 PM
To: David Farber
Subject: How privacy fits into antitrust law (Google/DoubleClick)

Dave:
               Below is a link to the testimony I submitted today in preparation for the FTC Town Hall on Behavioral Advertising, Nov. 1 and 2.  I think the new analysis of privacy fits into antitrust law might be of interest to your list.

Executive Summary

               As search and online advertising giant Google seeks to merge with online advertising leader DoubleClick, the debate has been greatly confused about how privacy issues fit into antitrust analysis.  This testimony draws on my experience both as a professor of antitrust and privacy law.  It explains as a general matter how privacy harms are relevant to antitrust analysis.

In brief, privacy harms can reduce consumer welfare, which is a principal goal of modern antitrust analysis.  In addition, privacy harms can lead to a reduction in the quality of a good or service, which is a standard category of harm that results from market power.  Where these sorts of harms exist, it is a normal part of antitrust analysis to assess such harms and seek to minimize them.

These sorts of privacy harms have not historically been important in antitrust analysis.  For a clothing merger, higher prices and lower quality of clothing are relevant harms to consumers.  For an auto merger, it is the price and quality of cars.  But for a merger that combines world-class databases, the way customer data is used after the merger becomes relevant.

<snip>

Link: www.americanprogress.org/issues/2007/10/privacy.html<file:///\\www.americanprogress.org\issues\2007\10\privacy.html>


Prof. Peter P. Swire
C. William O'Neil Professor of Law
   Moritz College of Law
   The Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net

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