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Privacy and competition law pursue different goals that do not always align, but they can be harmonized under the right approach. Recent proposals in Congress, however, put privacy and competition values in direct conflict, likely at the expense of consumer privacy. Rather than diminishing consumer privacy and security through competition legislation, Congress should enact a comprehensive consumer privacy law that protects consumers while leveling the playing field for all competitors. This article addresses recent calls to regulate consumer privacy and the commercial use of data through competition law. First, we address the changing landscape of consumer privacy and calls for additional regulation. We then discuss recent proposals to use competition law to address issues stemming from widespread data collection and aggregation. Finally, we describe the collision course of antitrust and privacy in recent legislative proposals and offer an alternative path forward.

This letter analyzes the current state of antitrust law in the areas of mergers and conduct and the resources of the US antitrust agencies. It urges a continued focus on competition and consumer benefits, rather than the pursuit of other goals or prohibitions unrelated to competitive effects, and urges Congress to provide additional resources to the enforcement agencies.

This chapter proceeds as follows. Section I begins with the background and recent history of the state action doctrine and its relation to occupational licensure, addressing the recent cases listed above. Section II discusses recent and current litigation involving competitors using the ‘Brother, May I?’ approach to prevent new technology in the digital economy from entering the market. Section III argues that the FTC’s targeted efforts in North Carolina Dental and Teladoc should extend to current issues in the digital economy by narrowing the use of occupational licensure for health services to regulations that actually protect health and safety. Section IV discusses the Commerce Clause implications caused by occupational licensure on new technology in the digital economy. Section V concludes this chapter.

Author(s): Barnett, Jonathan; Baye, Michael R; Cooper, James C; Crane, Daniel A; Elzinga, Kenneth G; Epstein, Richard; Garza, Deborah; Hazlett, Thomas W; Hurwitz, Justin Gus; Klein, Benjamin; Klick, Jonathan; Lambert, Thomas A; Lipsky, Tad; Manne, Geoffrey A; Masten, Scott E; Ohlhausen, Maureen; Rill, James; Rybnicek, Jan; Smith, Vernon L; Teece, David; Willig, Robert; Wright, Joshua D; Yun, John M

This article provides the most comprehensive study to date of the Federal Trade Commission's Part 3 process. A unique and defining tool, Part 3 allows the FTC to challenge alleged section 5 violations in-house through administrative litigation. Highlighting the agency's expertise, Congress gave the FTC that authority in 1914 to develop antitrust and later consumer-protection law. Although the Commission has used its Part 3 authority to good effect, especially in some recent competition matters, the process is controversial on due-process grounds. After it finds “reason to believe” that a violation exists and authorizes staff to litigate before an independent Administrative Law Judge, the Commission reviews the ALJ's decision de novo. The result, some critics argue, is a foregone conclusion. Rather than advance the law, they contend, Part 3 frees the Commission to reach its favored result. Maligned in some quarters as a “kangaroo court” in which the FTC alleges and later summarily confirms section 5 violations, the key question is whether administrative litigation effectively fulfills the role Congress set out for it. To resolve the debate, we need a clearer picture of how Part 3 operates. Does the FTC rubber stamp its prior determinations, invariably siding with complaint counsel? Or does it change course at the appeal stage and, if so, how often? And, when it does find a section 5 violation on appeal, how often does the FTC nevertheless prune counts and allegations, suggesting that it scrutinizes the factual and legal record before it? Do the answers change with the political constitution of the Commission, such as when a Democratic majority votes out a Part 3 complaint, but a Republican Commission hears the appeal? How often does the Commission's composition change between voting out and later deciding a Part 3 matter, and might the answer resolve the due-process issue? And does the FTC fare better at the U.S. Courts of Appeal if it affirmed or reversed the ALJ? Until now, relatively little empirical work has scrutinized administrative litigation at the FTC. This study tracks every Part 3 case that produced a Commission Decision on or after January 20, 1977. It captures all 145 antitrust and consumer-protection matters falling within that period, tracking their development through initial vote at the “reason to believe” stage, disposition before the ALJ, appeal before the Commission, and petition for review at the U.S. Court of Appeals and beyond. The emerging statistics are illuminative. In hearing an appeal in the last 10 years, the FTC has never rejected an action that it had previously authorized complaint counsel to bring in Part 3. At first blush, that fact might suggest a preordained appellate process. But that phenomenon dissipates when one looks at a larger time horizon, suggesting that uniformity from initial vote to appeal is neither inevitable nor systemic. Indeed, it is possible that recent consistency may be a function of improved case selection, aided by effective factual, economic, and legal analysis by staff and the Commissioners before they authorize a complaint. Evaluating the ten matters voted out and affirmed by the Commission in the last decade lends some support to that proposition. Indeed, Part 3 has been an effective tool in developing complex antitrust questions. This article provides a host of new evidence with which to evaluate administrative litigation at the FTC. The article concludes by exploring some initial teaching points from the data.

Those concerned with restrictions on innovative technologies and business models often decry the stultifying effects of a ‘Mother, May I?’ approach, whereby the innovator needs government permission to enter a market. These are worthy concerns that regulators ought to take seriously. This article focuses on a related issue, which the authors call the ‘Brother, May I?’ problem or the challenge of competitor control over market entry. This problem arises when would-be entrants are effectively required to obtain permission from incumbent competitors to enter or expand within a particular market. Whether it is due to a law or regulation, the decision of a financially-interested state board, or conduct by a monopolist looking to maintain its market power, new entrants to a market generally should not have to get their competitors’ permission to compete. That such permission is effectively required in an increasing number of situations is inconsistent with the free-market principles that ought to guide our economic policies. Three recent appellate victories by the Federal Trade Commission—in North Carolina Dental, Phoebe Putney, and McWane—all in some way involved the need to seek the permission of competitors to enter a market, and this article addresses each case in turn.

How and when the federal government should intervene to protect consumer privacy is a challenging issue. This article summarizes how the Federal Trade Commission (FTC) became the primary federal privacy regulator. It explains the enforcement tools at the commission's disposal in the context of emerging trends and specific challenges in the privacy arena. Finally, the article details topics for which additional research would be helpful to the FTC's mission to protect consumer privacy and concludes with a call for researchers to collaborate with the FTC to help shape privacy policy.

Section 5 of the Federal Trade Commission (FTC) Act prohibits ‘unfair methods of competition’ (UMC), including conduct that violates either the antitrust laws or Section 5 standing alone. Although it has existed for nearly 100 years, the FTC has never issued any formal guidance on its Section 5 enforcement policy. Relying on commonly used regulatory principles, this article identifies six criteria that the FTC should satisfy in pursuing any standalone Section 5 enforcement. First, the FTC should use its UMC authority only in cases of substantial harm to competition. Second, the FTC should pursue a UMC violation only where there is no procompetitive justification for the challenged conduct or where such conduct results in harm to competition that is disproportionate to its benefits. Third, in using its UMC authority, the FTC should avoid or minimize conflict with other institutions, including most notably the Department of Justice. Fourth, UMC enforcement must be grounded in robust economic evidence regarding the anticompetitive effects of the challenged conduct. Fifth, prior to pursuing a UMC violation, the agency should consider using its many non-enforcement tools to address the perceived competitive problem. Finally, the agency should provide clear guidance and minimize uncertainty in the UMC area.

It is clear that Americans are getting fatter, both adults and children. This development has led some to call for a ban on food advertising directed at children. There are numerous practical and constitutional difficulties with such a policy. This article poses a more fundamental question - even if feasible, would restricting food advertising do anything to reduce obesity or even slow its trends? The article also considers whether the social costs of banning advertising could outweigh the social benefits of such an action. This article provides a review of the literature on the fundamental causes of the American obesity problem as well as the purported contribution of children's advertising to the problem. The final conclusion is inescapable - the available evidence does not support the theory that children's exposure to food advertising has significantly contributed to increased children's obesity. Although children's obesity rates have skyrocketed during the past two decades, the available evidence indicates that children's exposure to food advertising has remained constant or has even declined during that same period. This article first describes the existing theories and empirical evidence regarding the causal factors in the American obesity problem. Second, the article examines in detail the claim that the rise in children's obesity has been caused in whole or in part by food advertising directed at children. Available evidence and observations regarding the exposure of children to food advertising fail to support the hypothesis that increased food advertising directed at children has significantly contributed to the rise in childhood obesity. As a result, there is also little reason to believe that greater restrictions on advertising directed at children will do much at all to staunch the increase in children's obesity. Third, the article reviews the existing literature on the positive effects that advertising can have on increasing consumer knowledge and choice. Thus, even though there is little evidence that advertising is the cause of the obesity problem, it is likely that advertising can play a positive role in being part of the solution to obesity by providing more information to consumers and by providing incentives to create and market healthier food alternatives.