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Antitrust law is ill prepared to handle a “market” where some percentage of consumers consider a loss of privacy a gain and others consider it a loss. Economic reasoning in general falters in the face of externalities, but usually we can all agree that, say, pollution is a harm (or negative externality) and flowers are a boon (or positive externality). Privacy preferences are much more idiosyncratic.

* Frank Pasquale. (2010). “Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries.“ Northwestern University Law Review 104(1).