U.S. authorities have recently filed complaints against Big Tech companies for both enabling and for omitting user privacy features on their respective products. According to the FTC, Facebook privacy settings deceived users about the ability to control their privacy. At the same time, state Attorney Generals accuse Google of harming competition in the ad business by blocking cookies used to track and target users of its Chrome browser. Together, these cases suggest a fundamental incoherence in current antitrust enforcement.

From a consumer welfare standpoint, it is not clear that Big Tech engages in anti-competitive behavior, since many of their services are free. The consumer welfare standard says courts should focus on the impacts of business practices on consumers, rather than alleged downsides to competitors. In the U.S., this has prompted some scholars and policymakers to call for replacement of the consumer welfare standard.

Putting consumer welfare aside would probably require legislative overhaul. So antitrust authorities and law scholars have recently focused on claiming that Big Tech hurts consumers through lower quality services, namely, less privacy protection. This is the gist of a 2020 complaint by the FTC and 48 states against Facebook.

Whatever the merits of “lower quality” arguments, they at least make sense from a consumer welfare standpoint. Economic theory is ambiguous on the relation between market power and product quality, and evidence also suggests competition may not increase quality. It is therefore possible that market power reduces quality.

Recently, however, some state Attorneys General filed charges against Google for planning to phase out third-party cookies by 2022.

Cookies are small data blocks sent by visited websites and stored locally by the web browser. Websites use first-party cookies to record information like settings (e.g., language) and authentication (e.g., so users don’t have to login every time they access a page). Third-party cookies are sent by other domains than the one the user is visiting. This allows third parties to track activity across different webpages and thus better target their ads.

Google claims that blocking third-party cookies in Chrome will increase privacy and safety, preventing third-parties from tracking consumers browsing activities across websites and from getting cookies from unsafe origins. The claims fits similar moves by other browsers, such as Safari and Firefox.

The joint FTC and states lawsuit argues that the move will further entrench Google’s position in the digital ad market. Although the planned block affects everyone, critics contend that Google relies less on third-party cookies than other companies. Since many millions already interact with Google services and sites, it can get first-party cookies (not subject to the block) to track and target consumers.

This argument is overblown. First, most of Chrome’s competitors have similar features regarding third-party cookies. If Google were to singularly benefit from blocking third-party cookies, due to its position as both browser and ad provider, we would expect Chrome to pioneer the suppression of such cookies, not lag behind competitors.

Second, there are alternative ways to track and target consumers. The end of third-party cookies has been looming for a long time, and several alternatives exist. Google itself is proposing its Privacy Sandbox as an alternative, bundling similar Chrome users together in “cohorts” that allow for ad targeting without displaying individual information.

More importantly, the case points to conflicting stances in recent antitrust policy. As mentioned before, the FTC brought a complaint against Facebook for insufficient user privacy. Google was also subject to a prior complaint by the FTC arguing Google misrepresented whether its browser was tracking user online activity through cookies. It is hard to see how both enhancing and restricting privacy can be grounds for antitrust charges against tech companies.