ANTICOMPETITIVE PRIVACY: TAKING A BITE OUT OF APPLE.

Privacy and antitrust are on a collision course. Large firms with monopoly power or near-monopoly power can build products that ostensibly enhance user privacy while raising rivals' costs and allowing monopolist firms to gain footholds in secondary markets. In this Note, I use the example of Apple's privacy changes, the impact these changes had on digital advertising, and Apple's subsequent expansion of its own digital marketing offerings as a motivating example of how current antitrust doctrine is ill-equipped to handle this new form of monopolist behavior. Privacy is the latest example of an "incommensurability" problem in the final stage of the standard rule of reason analysis. Even if a plaintiff can demonstrate competitive harm from privacy-preserving conduct, courts are constrained in what type of relief they can order. Fortunately, one of the main federal antitrust enforcers--the Federal Trade Commission--is also the source of much of federal privacy law. It has the authority and expertise to promulgate rules pursuant to section 18 of the Federal Trade Commission Act to address anticompetitive privacy and strike the appropriate balance between competition and consumer protection. Much of the Commission's privacy enforcement has reflected the heavily criticized "notice-and-choice" privacy framework. However, the Commission's recent initiation of the Magnusson-Moss rulemaking process signals an opening to not only move beyond this framework, but also to consider both competition and privacy in the formation of any rule regulating technology firms. [ABSTRACT FROM AUTHOR]