Biden nominates tech critic Lina Khan to the FTC


Portrait of Lina Khan, the author of the Yale Law Journal article, “Amazon’s Antitrust Paradox” which has been read much more than any other law article. Khan was photographed at her home in Larchmont, New York on July 7th, 2017.

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Lina Khan, the noted tech critic whose examination of the antitrust case against Amazon sparked a reckoning among enforcers, is President Joe Biden’s pick to become a commissioner at the Federal Trade Commission, the White House announced Monday.

If confirmed, Khan would get to vote on important cases involving antitrust and consumer protection at the FTC. That could include a decision on whether to bring an antitrust lawsuit against Amazon, which it has reportedly been investigating, as well as whether to block acquisitions by large companies.

The selection has already been roundly cheered by progressives who see Khan as the type of enforcer who could rein in tech giants that lawmakers on both sides of the aisle believe have abused their power. It builds on Biden’s decision to hire another prominent enforcement advocate, Tim Wu, to work on technology and competition policy on the National Economic Council.

Khan is widely praised in progressive circles for her scholarship on antitrust, which has focused on tech companies in particular. As a law student at Yale University in 2017, she wrote a viral note entitled “Amazon’s Antitrust Paradox,” which challenged the consumer welfare-focused approach that for years had dominated antitrust enforcement. Most recently, she’s taught antitrust law at Columbia University.

In her 2017 note, Khan argued that a more expansive interpretation of the antitrust laws must be used to appropriately evaluate a digital platform like Amazon, which can act like a gatekeeper of a market. She wrote that platforms could engage in a practice of predatory pricing, for example, which would seem to benefit consumers by lowering prices, but in fact cut out legitimate competitors who could further innovate.

She also played a key role in crafting the hefty report detailing the alleged anticompetitive behaviors of Amazon, Apple, Facebook and Google while working for the House Judiciary subcommittee on antitrust. Khan primarily worked on the Google section of the report. The Democratic proposal offered sweeping reforms to the antitrust laws that would make it more difficult for the tech giants to buy smaller companies, among other suggestions.

While lawmakers on both sides of the aisle have been pushing for stronger enforcement of the antitrust laws against the tech companies, Khan’s nomination could still face some headwinds. Sen. Mike Lee, R-Utah, criticized Khan’s youth and experience in a statement after Politico reported earlier this month on her selection.

“Ms. Khan no doubt has a promising career ahead of her, but being less than four years out of law school, she lacks the experience necessary for such an important role as FTC Commissioner,” Lee said. “Her views on antitrust enforcement are also wildly out of step with a prudent approach to the law. Nominating Ms. Khan would signal that President Biden intends to put ideology and politics ahead of competent antitrust enforcement, which would be gravely disappointing at a time when it is absolutely critical that we have strong and effective leadership at the enforcement agencies. This moment is too important for our antitrust enforcers to be learning on the job.”

If confirmed, Khan would join Democrat and Acting Commissioner Rebecca Kelly Slaughter and Republican Commissioners Noah Phillips and Christine Wilson. That would leave Biden with one more commissioner seat to fill to complete the agency’s five-member panel, after he nominated current Democratic Commissioner Rohit Chopra to lead the Consumer Financial Protection Bureau.

Khan would also be tasked with weighing in on consumer protection cases taken on by the FTC. In the past few years, such cases have included the FTC’s $5 billion settlement with Facebook over its privacy policies and $170 million fine against YouTube for allegedly violating privacy protections for children.

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