In 2007, a lone FTC Commissioner issued a dissent arguing there were various potential “theories that might make privacy ‘cognizable’ under the antitrust laws….” Flying somewhat under the radar at the time, that statement has now become prescient. Increasingly, the agencies appear to be treating privacy and data issues as non-price components of competition. But while the agencies are swinging privacy as an antitrust sword, defendants are raising it as a shield in antitrust litigation. When might data and privacy become an antitrust liability, and when can it be an antitrust defense?

This panel will explore the contours of those shoals and ways to navigate them, at a time when both privacy and antitrust are at the forefront of law and policy.