Lina Khan Was One in all Large Tech’s Largest Critics. Now She’s Its Regulator.
WASHINGTON – One of Lina Khan’s first projects as a new hire at an antitrust think tank in 2011 was researching the history of the book market, which was increasingly dominated by Amazon. It was an early, unpublished entry in a work that has since established her as the main critic of tech giants and corporate concentration.
She spent the next 10 years refining her arguments and becoming a leading figure in a growing movement calling for more aggressive surveillance of Google, Facebook, Apple, and Amazon.
Now she is in a position to put those ideas into practice – and potentially reshape the regulation of the country’s largest corporations. On Tuesday, Ms. Khan, 32, was sworn in as chairman of the Federal Trade Commission after being appointed to the role by President Biden, the youngest in the agency’s history and the most progressive in at least a generation.
“She brings what I would call the boldest vision for the agency in its history,” said William Kovacic, a former chairman of the agency, of her approach to competition law. “So she’s a potentially transformative figure in that regard.”
The question is how much it can achieve.
Her rapid rise from researcher to head of a large federal agency underscores growing concerns about the power of big tech companies – and big business in general – in Washington. In her new job, she will command more than 1,000 investigators, lawyers and economists who are responsible for overseeing the American economy.
Her reach will extend well beyond the tech giants and antitrust criticism that she made her name with. In addition to investigating antitrust violations, the FTC also investigates unfair or fraudulent corporate practices. This year alone, it challenged the merger of two Pennsylvania cement manufacturers, cracked down on unsupported claims about treatments for Covid-19, and reached an agreement with two liquor companies on a merger that would affect competition for cheap sparkling wine.
But Ms. Khan will also face her limits. In order to create new rules or take massive action against companies, she has to convince at least two of the four other commissioners to agree to her. She will also have to make decisions that can stand up to courts, which tend to roll back aggressive antitrust enforcement actions.
“If you want your vision to endure,” said Kovacic, “you have to change laws and guidelines, and you can’t do that yourself.”
Ms. Khan did not comment on this article. In a statement on Tuesday, she said she looked forward to “working with my colleagues to protect the public from corporate abuse.”
Ms. Khan quickly became known. After several years at the think tank in Washington – during which she wrote, among other things, about the lack of concentration in chicken farming – she studied law at Yale. During her studies, she wrote about how the rise of Amazon illustrated the need for a more muscular approach to regulating the industry. The article made her a celebrity in the small world of antitrust law.
Ms. Khan then made stops in Washington which she established as a behind-the-scenes presence. She worked at the FTC for Progressive Commissioner Rohit Chopra and on Capitol Hill collaborating on a comprehensive study into the power of Silicon Valley. When lawmakers attacked the bosses of the big tech companies, Ms. Khan was behind them.
During this time, Ms. Khan rarely circulated among Washington’s politicians and policymakers at galas and other events. Her supporters say she is cerebral, calm under pressure, and generally has no visible ego typical of Washington nerds.
“She’s extremely humble,” said Sarah Miller, the director of the American Economic Liberties Project and a former associate of Ms. Khan who supports her antitrust approach. “It is focused on ideas and strong arguments.”
But as Chair of the FTC, she will most likely have to use the bullying pulpit as one of her most powerful tools.
She will be the face of the agency and oversight of the country over big business. She will represent the agency at congressional hearings and on panels and speeches for the thousands of attorneys paid to defend clients before the FTC
Agency executives often use these public events to present their vision of antitrust and consumer law to the public and their colleagues in the Commission.
Ms. Khan will also have more blunt instruments at her disposal. The agency can refuse mergers or force companies to change the terms of their acquisitions. Over the past decade, the agency has approved numerous deals with the tech giants, such as Amazon’s acquisition of Whole Foods. It didn’t get in the way of Facebook’s Instagram and WhatsApp purchases. But Ms. Khan has already said that she believes regulators should look more closely at these types of transactions.
The agency can also bring companies to court for violations of the law, such as the one they sued Facebook last year for abusing its monopoly power. It is able to set up rules for fair competition.
Ms. Khan is one of five commissioners and one of three Democrats, which gives her a working majority when she starts her new job. But Mr Chopra has been appointed head of the Consumer Financial Protection Bureau, and his departure would block the commission between the Democrats and their two Republicans until Mr Biden can get a new member approved by the Senate.
She also faces other threats on her agenda. Whatever big strides she takes, she will most likely face challenges in courtrooms dominated by conservative judges. This year the Supreme Court unanimously restricted the FTC’s ability to reclaim money from companies that deceive customers.
Critics say the task of antitrust and consumer protection is to comply with existing laws. However, their reputation is based on their criticism of the laws.
Robert Bork Jr., president of the Antitrust Education Project, a group advocating a traditional interpretation of antitrust law, wrote Tuesday that Khan was a “famous scholar who transformed antitrust law into a tool that enables government to to control capitalism ”. Mr. Bork is the son of Robert Bork, the legal scholar who advocates much of the current antitrust doctrine that Ms. Khan criticizes.
Their skepticism about an antitrust theory known as the consumer welfare standard – the measure of competition based on whether prices for consumers go up – is dangerous, warned Bork.
“If the standards are vague and the law is ambiguous, the Biden government and its regulators will have the means to take arbitrary action against any business,” he said.
For now, however, her followers are enthusiastic. Rep. David Cicilline, the House Democrat who Ms. Khan worked on the investigation last year, said he believed her appointment marked a change from the decades the agency had largely approved corporate concentration.
“I think we can expect a completely different approach with this monopoly moment and the enormous market dominance of these tech companies with Lina Khan at the helm of the FTC,” he said at a press conference on Wednesday.