Despite the fact that regulators are supposed to scrutinize the potential anti-competitive dimensions of the pending acquisition of DoubleClick by Google, privacy has sneaked into the debate as a major issue on both sides of the Atlantic. It almost threatens to overshadow the antitrust considerations, which are the heart and purpose of the regulatory review process. Indeed, privacy isn’t even relevant to the FTC’s analysis.
In Europe the discretion of regulators may well be broader, allowing them to consider a wider range of issues than simply the impact on competition in the market for online advertising.
What seems clear, however, is that a host of developments, well beyond Google-DoubleClick, has recently elevated the issue of consumer privacy online. These include the rise of behavioral targeting, Web history/data retention by search engines, social network data mining (e.g., Facebook Beacon), and people search, among other issues.
The Google-DoubleClick deal has become something of a lightning rod for the entire debate, given Google’s dominant position online. And Google will likely be compelled, as a result, to provide concrete assurances to regulators and specific, tangible measures to protect consumer privacy as a condition of approving the transaction.
Privacy is a critical issue that must be safeguarded and debated thoroughly. But the issues surrounding privacy and online advertising competition should not be conflated in this review process. While conceptually related, they’re legally distinct.