The Google-DoubleClick Merger: Lessons From the Federal Trade Commission's Limitations on Protecting Privacy

Abstract

In the wake of Big Tech’s growing power, much attention has been directed to the Federal Trade Commission as the regulatory force for monitoring the technology industry. But scholars are largely divided on the issue of whether privacy exists within the scope of antitrust law. Using the 2008 acquisition of DoubleClick by Google as a case study, this article argues that privacy is an antitrust issue and should have been considered in the FTC’s merger review process for the ways it affected both competition and consumer welfare. The article examines the role of consumer data in fortifying Google’s barriers to entry, squashing innovation, and reducing choice in the marketplace, and considers the invasion of data privacy as an issue of consumer protection. The article argues that the foundation for evaluating privacy within the merger review already exists, as Section 5 of the FTC Act gives the Commission special responsibility to uphold these values and interpret its review process in order to keep up with a changing market structure. More than a decade later, these lessons remain relevant, as antitrust law experiences a resurgence in the United States.