During the democrat presidential primary, several candidates makes antitrust law enforcement against Big Tech part of their campaign pitch. Joe Biden was not one of them. When he won the nomination, and ultimately the presidency, the leaders of Silicon Valley probably felt like they had dodged a bullet. If so, they seem to be wrong.
Tuesday morning, Politico reported that Biden is considering appointing Lina Khan Legal University to a vacant seat on the Federal Trade Commission, one of the agencies with the most power to enforce antitrust laws. Khan is at the forefront of the Big Tech antitrust movement. In January 2017, while still a student at Yale Law School, she became an academic overnight. celebrity with the publication of a paper titled “Amazon’s Antitrust Paradox,” which both targeted Amazon’s anti-competitive behavior and delivered a powerful critique of the antitrust establishment. Last year, as a staff member of the House Antitrust Subcommittee, she was a key figure behind the monument investigation in Facebook, Amazon, Google and Apple. Now Khan is set to be part of a new antitrust establishment. (Disclosure: Khan and I went to law school together and remained friendly. However, she did not respond to my request for comment.)
Khan is said to be the second top Big Tech critic to join the administration in recent days. Last week, Biden appointed Tim Wu to the National Economic Council as a special assistant for technology and competition policy. Wu, who like Khan is a law professor at Columbia, is best known for invent the term “net neutrality”. In his 2010 book The main switch, at a time when very few people put “tech” and “antitrust” in the same sentence, he cautioned against the tendency for new communications technologies to monopolize. More recently it has become one of the most sophisticated reviews attention-focused business models from companies like Facebook and Google. Khan and Wu are the kind of people who would likely have run an Elizabeth Warren administration. The fact that Biden is involving them is the strongest sign yet that his administration may have a much more critical eye on technology and antitrust than many people expected.
If nominated and confirmed, Khan would be one of three Democrats among the five FTC commissioners, meaning she alone cannot shape the direction of the agency. Still, his appointment could be particularly important. Khan has written on the need to use all the tools of the “anti-monopoly toolbox”, rather than simply dismantling individual companies. Well, the FTC has a lot of tools. He hasn’t used them much lately – even though he has fined the biggest tech companies, they were for insignificant amounts– but they exist. Like the Justice Department, the FTC can block mergers and take legal action to overturn them after the fact, as it did when it did. filed a complaint against Facebook in December. But Congress also gave the agency the power, rarely used, to issue legally binding rules governing what is considered fair competition, meaning it can reform the law, within limits, even if the Congress does not act.
“My dream is for him to start drafting competition rules that simply spell out what practices are prohibited,” said Sandeep Vaheesan, legal director of the Open Markets Institute, an anti-monopoly think tank, in an interview with the end of last year. “So instead of having to go to court for every monopoly and spend three to five years on a case, it would just set up rules saying the following practices are illegal – either outright or just if you’re dominant.” For example, he says, the FTC could issue a rule prohibiting employers from making workers sign non-competition clauses.