Dissolving Privacy, One Merger at a Time: Competition, Data and Third Party Tracking

Abstract

Amid growing concern about the use and abuse of personal data over the last decade, there is an emerging suggestion that regulators may need to turn their attention towards the concentrations of power deriving from large-scale data accumulation. No longer the preserve of data protection or privacy law, personal data is receiving attention within competition and antitrust law.Recent mergers and acquisitions between large digital technology platforms have raised important questions about how these different areas intersect and how they can complement one another in order to protect consumer welfare while ensuring competitive markets. This paper draws attention to one particularly complicated kind of digital data-intensive industry: that of third party tracking, in which a firm does not (only or primarily) collect and process personal data of its own customers or users, but rather collects and processes data from the users of other ‘first party’ services.Mergers and acquisitions between firms active in the third party tracking industry raise unique challenges for privacy and fundamental rights which are often missed in regulatory decisions and academic discussions of data and market concentration. In this paper, we combine empirical and normative insights to shed light on the role of competition regulators in addressing the specific challenges of mergers and acquisitions in the third party tracking industry. After critically assessing some of the US and EU case law in this area, we argue that a bolder approach is needed; one that engages in a pluralist analysis of economic and noneconomic concerns about concentrations of power and control over data.