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Months have passed since it was first revealed in July 2019 that the Department of Justice (DOJ), in response to various stakeholders’ concerns, was conducting a review into certain “market-leading online platforms” and whether they engaged in antitrust violations.<a href="#_ftn1" name="_ftnref1">[1]</a> U.S. Attorney General William Barr reiterated that the government was “taking a closer look at the leading online platforms and the competitiveness of digital markets.”<a href="#_ftn2" name="_ftnref2">[2]</a> He emphasized the bipartisan effort to review the practices of both Google and Facebook, noting that a similar coalition was formed approximately 20 years ago. Notably absent from the Google inquiry is antitrust chief Assistant Attorney General Makan Delrahim, who recused himself because he had represented the company while he was in private practice.

Almost all state attorneys general are also conducting a parallel investigation into Google. Led by Ken Paxton of Texas, the attorneys general are looking at “Google’s overarching control of online advertising markets and search traffic that may have led into anticompetitive behavior that harms consumers.”<a href="#_ftn3" name="_ftnref3">[3]</a> Reaching beyond antitrust concerns, the state AGs have also raised other issues, most notably whether the FTC should be investigating Big Tech’s possession of consumer data and whether that raises privacy concerns.<a href="#_ftn4" name="_ftnref4">[4]</a>

Earlier this month, officials from the DOJ met with various state AGs to discuss their respective findings from their investigations. At this time it is unclear whether the dual inquiries will ever merge into one cohesive effort; however, it is clear that the probes are very much active. Recently, the state AGs reached an agreement with Google regarding consultants retained to assist with their probe as the investigation proceeds.<a href="#_ftn5" name="_ftnref5">[5]</a> The focus of the inquiry is to determine whether Google “undermined consumer choice, stifled innovation, violated users’ privacy, and put Google in control of the flow and dissemination of online information.”<a href="#_ftn6" name="_ftnref6">[6]</a>

While noncompetition issues, such as privacy, in antitrust are hardly a novel concept,<a href="#_ftn7" name="_ftnref7">[7]</a> the differences now are the magnitude and reach of the information tech companies now possess. As online platforms increasingly evolve into behemoth entities, with their pervasiveness evoking Frank Norris’ 1901 novel, The Octopus, federal and state agencies are stepping up to enhance antitrust enforcement and to examine Big Tech’s practices when it comes to using citizens’ private information. But does penalizing these companies actually benefit consumers? Online platforms claim that their ability to provide the best services to their users at the lowest cost is based on how they track data. In exchange, privacy rights are implicated, forcing authorities to take action. It makes sense, then, for federal and state officials to respond with a massive investigation into one of the biggest tech companies.   This, of course, is not the end of the story.

Antitrust laws were not intended to protect privacy rights. As FTC Commissioner Noah Joshua Phillips noted, “competition and privacy laws are different. They serve different ends, and employ different tools. Often, they are in direct tension.”<a href="#_ftn8" name="_ftnref8">[8]</a> While it is true that companies like Google stand to profit from consumer data, antitrust laws, which are intended to prohibit noncompetitive activities, do not directly regulate one’s right to privacy. Understandably, the collection of data is part of that inquiry and undoubtedly raises privacy concerns. But that should be dealt with through the various U.S. consumer privacy laws, and not by trying to impermissibly stretch the antitrust doctrines beyond their mandate.

<a href="#_ftnref1" name="_ftn1">[1]</a> Press Release, Dep’t of Justice, “Justice Department Reviewing the Practices of Market-Leading Online Platforms,” (July 23, 2019), <a href="https://www.justice.gov/opa/pr/justice-department-reviewing-practices-market-leading-online-platforms">https://www.justice.gov/opa/pr/justice-department-reviewing-practices-market-leading-online-platforms</a>.
<a href="#_ftnref2" name="_ftn2">[2]</a> Speech, Attorney General William P. Barr, Dec. 10, 2019, <a href="https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-national-association-attorneys-general">https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-national-association-attorneys-general</a>.
<a href="#_ftnref3" name="_ftn3">[3]</a> News Release, Attorney General of Texas, “Attorney General Paxton Leads 50 Attorneys General in Google Multistate Bipartisan Antitrust Investigation, (Sept. 9, 2019), <a href="https://www.texasattorneygeneral.gov/news/releases/attorney-general-paxton-leads-50-attorneys-general-google-multistate-bipartisan-antitrust">https://www.texasattorneygeneral.gov/news/releases/attorney-general-paxton-leads-50-attorneys-general-google-multistate-bipartisan-antitrust</a>.
<a href="#_ftnref4" name="_ftn4">[4]</a> News Release, Attorney General of Texas, “AG Paxton Urges FTC to Consider the Role of Consumer Privacy and Data in Antitrust Enforcement, (June 11, 2019). <a href="https://www.texasattorneygeneral.gov/news/releases/ag-paxton-urges-ftc-consider-role-consumer-privacy-and-data-antitrust-enforcement">https://www.texasattorneygeneral.gov/news/releases/ag-paxton-urges-ftc-consider-role-consumer-privacy-and-data-antitrust-enforcement</a>.
<a href="#_ftnref5" name="_ftn5">[5]</a> Sue Reisinger, Corporate Counsel, “In Google Antitrust Discovery, a Small Victory for In-House Counsel,” (Feb. 24, 2020), <a href="https://www.law.com/therecorder/2020/02/24/in-google-antitrust-discovery-a-small-victory-for-in-house-counsel-403-46695/">https://www.law.com/therecorder/2020/02/24/in-google-antitrust-discovery-a-small-victory-for-in-house-counsel-403-46695/</a>.
<a href="#_ftnref6" name="_ftn6">[6]</a> Supra, note 3.
<a href="#_ftnref7" name="_ftn7">[7]</a> See Federal Trade Comm’n v. Raladam Co., 283 U.S. 643 (1931).
<a href="#_ftnref8" name="_ftn8">[8]</a> Speech, Commissioner Noah Joshua Phillips, “Should We Block This Merger? Some Thoughts on Converging Antitrust and Privacy,” (Jan. 30, 2020), <a href="https://www.ftc.gov/system/files/documents/public_statements/1565039/phillips_-_stanford_speech_10-30-20.pdf">https://www.ftc.gov/system/files/documents/public_statements/1565039/phillips_-_stanford_speech_10-30-20.pdf</a>.

Should Antitrust Laws Tackle Privacy Issues? DOJ and State AGs Continue Google Investigations in Response to Privacy Concerns