During the Democratic presidential by-election, multiple candidates made antitrust enforcement against Big Tech part of their campaign. Joe Biden was not one of them. When he won the nomination and eventually the presidency, Silicon Valley executives probably felt like they were dodging a bullet. If so, it seems they were wrong.
Tuesday morning, Politico report that Biden intends to nominate the law academy Lina Khan to an open seat in 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 celebrity with the publication of a paper titled “Amazon’s Antitrust Paradox,” which was both focused on Amazon’s competitive behavior and a strong critique of the antitrust institution. Last year, as an associate of the House Antitrust Subcommittee, she was a key figure behind the important investigation into Facebook, Amazon, Google and Apple. Now Khan is about to become part of a new antitrust institution. (Disclosure: Khan and I went to the right school together and stayed friendly. On the other hand, she did not respond to my request for comment.)
Khan would only be the second high critic of Big Tech to be recruited to the government in just the last few 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 coining the term ‘net neutrality’. In his book from 2010 The main switch, at a time when very few people put “tech” and “antitrust” in the same sense, he warned about the tendency for new communication technologies to monopolize. More recently, he has emerged as one of the most sophisticated critics of the attention-driven business models of companies such as Facebook and Google. Khan and Wu are the kind of people who would probably man an Elizabeth Warren administration. The fact that Biden is bringing them on board is the strongest sign yet that his government may have a much more critical eye on technology and antitrust than many people expected.
If appointed and confirmed, Khan would be one of three Democrats among the five FTC commissioners, meaning she could not form the direction of the agency alone. Yet her appointment may be particularly consequential. Khan het writing about the need to use all the tools in the “antimonopial toolbox”, rather than breaking down individual businesses. Well, the FTC has a lot of tools. It did not make them use much – even though the largest technology companies were fined, it was for small amounts – but it does exist. Like the Department of Justice, the FTC can block mergers and sue to undo them – as it did when it filed a lawsuit against Facebook in December. But Congress has also given the agency the power, rarely used, to issue legally binding rules that govern as fair competition, meaning it can reform the law within limits, even if Congress does not act.
“My dream is to start writing competition rules that determine which practices are prohibited,” Sandeep Vaheesan, legal director of the Open Markets Institute, an antimonopoly think tank, said in an interview late last year. “Instead of having to try every monopolistic case and spend three to five years on a case, it would just establish rules that say the following practices are illegal – categorically or only if you are dominant.” He says, for example, that the FTC could issue a rule banning employers from having workers sign non-competitive clauses.