When most people think of antitrust, they think of money: collusive deals to fix the price of a computer component or even tuna, or an abuse of market dominance that sticks consumers with a more expensive (and perhaps inferior) product. But in a brave new world where personal data is every bit as valuable as currency, is privacy the next frontier in antitrust litigation?

It's an idea that's getting increasing attention—particularly in Europe. Margrethe Vestager, the EU Competition commissioner, said in a speech last fall that EU regulators “need to start looking at mergers with valuable data involved.” U.S. Federal Trade Commission acting Chairwoman Maureen Olhausen co-authored a paper on the notion of guarding consumer privacy through antitrust law, and Wired magazine more recently declared in a headline that “Digital Privacy Is Making Antitrust Interesting Again.” The Recorder spoke with several defense and plaintiffs attorneys about how data-related dealmaking could actually lead to an enforcement action or civil antitrust litigation. While it may not be on the immediate horizon, here are three ways the issue could come before the courts:

Colluding for Weaker Privacy

You know those privacy policies—the ones that you barely skim past as you click to create an account for a new app on your phone. For those who are more privacy-conscious, though, there is at least the appearance of choice. Apple Inc. boasts that unlike some other tech giants you may know, “we don't use a persistent personal identifier to tie your searches to you in order to build a profile based on your search history.”

But what if that wasn't the case? What if some companies reached a deal where they would all give consumers the same watered-down privacy protections—and never offer to forgo reselling your data to third parties? “One way that privacy could fit into that [antitrust] framework is if you have an agreement not to compete on the privacy terms that are being offered,” said Daniel Birk, a partner at Eimer Stahl in Chicago who counsels companies on both privacy and antitrust issues. That would be similar to a price-fixing arrangement, just on nonprice attributes, and could arguably be a violation under Section 1 of the Sherman Act.