This article examines the underappreciated tension between legislatures’ efforts to strengthen privacy protections for personal information and antitrust enforcers’ increasingly favorable attitude towards corporate self-policing. Privacy and antitrust have the potential to be strong legal complements, promoting free and fair markets for all market participants. In the United States, the reasonable expectations test historically has enabled a balancing of employer and employee interests related to the collection and use of employee personal information, as would allow businesses to institute all of the hallmarks of effective compliance identified by the Department of Justice’s Antitrust Division. However, restrictions on personal data collection and analysis that have passed in recent years seem not to allow such a nuanced approach to employee privacy in the workplace, potentially undermining businesses’ efforts to implement suitable antitrust compliance programs. Legislators should take greater note of antitrust policy goals (among others) when formulating privacy legislation, an effort that businesses can aid.


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