New York: Legal scholar and antitrust crusader Lina Khan has begun her term as the Joe Biden administrations top federal regulator overseeing industry competition, consumer protection and digital privacy at a time when Big Tech is coming under fire at home and abroad for market dominance riding primarily on behavioural data extraction at scale.
At 32, Khan is said to be the youngest chair in Federal Trade Commission (FTC) history. Wednesday was Khan’s first full day in her new role. Her term runs until September 25, 2024.
Khan was sworn in as chair of the FTC after the Senate confirmed her via a 69-28 vote. Khan will now be one of three FTC Democratic commissioners.
While still a law student at Yale, Khan cranked out a 96 page zinger titled “Amazon’s Antitrust Paradox,” published in the Yale Law Journal, in January, 2017.
Broadly, Khan’s argument is that the old antitrust framework needs an internet era fix. She makes the case that the consumer surplus argument alone isn’t enough or ever intelligent anymore.
Khan frames the next era of competition policy for platform markets in the form of two questions: “First, does our legal framework capture the realities of how dominant firms acquire and exercise power in the internet economy? And second, what forms and degrees of power should the law identify as a threat to competition? Without considering these questions, we risk permitting the growth of powers that we oppose but fail to recognize.”
Khan suggests applying elements of public utility regime or essential facilities obligations to dominant online platforms to “maintain the benefits of scale while limiting the ability of dominant platforms to abuse the power that comes with it.”
Khan’s body of work, published in the Columbia Law Review, Harvard Law Review, University of Chicago Law Review and Yale Law Journal, has added a new lens to the impact of dominant companies on consumer prices and on communities at large. In recent years, as counsel to the US House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law, Khan played a big role in a landmark bipartisan investigation of US tech giants’ market power. Khan has also worked as legal advisor to Rohit Chopra, one of five FTC Commissioners.
“I look forward to working with my colleagues to protect the public from corporate abuse,” Khan said in a statement.
“Congress created the FTC to safeguard fair competition and protect consumers, workers, and honest businesses from unfair and deceptive practices. I look forward to upholding this mission with vigor and serving the American public,” Khan tweeted.
In March, Biden appointed Tim Wu, also a strident big tech critic, as a special assistant to the president for technology and competition policy within the National Economic Council.
Together, Wu and Khan embody an intellectual construct that has become the signature anthem of the progressive antitrust revival after Donald Trump’s election in 2016.
Wu, the author of “The Curse of Bigness: Antitrust in the New Gilded Age,” has often asked audiences to think deeply about what it means to pay with data, rather than with traditional forms of payment and whether societies are worse off when technology gets better. He makes the case that collective action by consumers must persist and push technology giants in directions that will define how we live, work and thrive in the age of algorithmic mediation.
When the US Department of Justice and 11 US states sued Google in 2020, Wu told NPR: “This case signals that the antitrust winter is over.”