The FTC is laying on a litigation press against anticompetitive data privacy violations---that litigation will be judicially prioritized AND change corporate practice for the better.

Privacy is increasingly becoming a significant factor in antitrust litigation, both as justification to defend against alleged anticompetitive conduct and as an element of product quality that can be diminished as a consequence of alleged anticompetitive conduct. 257 This trend will continue in litigation and will in turn affect the legal landscape, along with corporate practice. Given the recent antitrust litigation involving both defendants and plaintiffs raising privacy concerns, this Part examines the consequences of using data privacy as a shield and sword to alleged antitrust misconduct from a regulatory, litigation, and corporate perspective.

The trend of incorporating privacy into antitrust litigation will continue. In the last year, the Biden Administration made three key appointments that could potentially impact the future of antitrust and privacy. 258 First, President Biden nominated Lina Khan, who was confirmed by the Senate to serve as the Chair of the FTC. 259 Khan, a strong proponent of the Hipster Antitrust movement, has published literature discussing the implications of Big Tech companies handling vast amounts of user data. 260In a 2019 Harvard Law Review article discussing the relationship between privacy and antitrust, Khan and her coauthor wrote that "any broad regulatory framework ... that focuses on abusive data practices[] [*580] without attending to issues of market structure is likely to be at best highly incomplete and at worst an impediment to necessary reforms." 261 Thus, Khan's appointment may lead to more robust antitrust enforcement that incorporates data privacy in its review.

President Biden also nominated Alvaro Bedoya, who was confirmed by the Senate to serve as an FTC Commissioner. 262Bodeyo founded Georgetown's Center on Privacy & Technology and has written extensively on privacy-related topics and issues, 263and will bring a fresh privacy perspective to the FTC. Finally, President Biden appointed Tim Wu to serve as Special Assistant to the President for Technology and Competition Policy. 264Wu, the author of The Curse of Bigness: Antitrust in the New Gilded Age, has criticized tech firms for their anticompetitive conduct, which he argues allows them to get away with deficient data privacy protections. 265Wu may bring this perspective into his role. Given President Biden's pro-privacy nominations to his Administration, it is likely that regulators will wield privacy concerns in antitrust enforcement.

Additionally, in July 2021, President Biden issued Executive Order 14036, Promoting Competition in the American Economy, focused specifically on the technology industry. 266 It states:

It is the policy of [the] Administration to enforce the antitrust laws to meet the challenges posed by new industries and technologies, including the rise of the dominant Internet platforms, especially as they stem from serial mergers, the acquisition of nascent competitors, the aggregation of data, unfair competition in attention markets, the surveillance of users, and the presence of network effects. 267

As for the judicial landscape, it is likely that more courts will accept privacy claims and defenses in antitrust litigation, especially in light of hiQ Labs and Klein. It is also likely, depending on the outcomes of Klein and Google, that more consumer class actions against Big Tech companies will be brought. Both cases involve antitrust defendants who rely on selling consumer data for profit and have faced the most scrutiny regarding their lack of data privacy protections.

The law has only barely begun to scratch the surface in addressing the intersection between antitrust and data privacy. Courts are also likely to consider both in conjunction, given the current Administration and its scrutiny of Big Tech. However, legislators and regulators must work together to intertwine the bodies of data privacy and antitrust law to create a more robust analysis of data privacy in antitrust litigation.