Apr 20, 2021 - Technology

The ascent of Lina Khan, tech antitrust icon

Photo illustration of Lina Khan with the Capitol Building, a gavel, and binary code

Photo illustration: Sarah Grillo/Axios. Photo: An Rong Xu/Washington Post via Getty Images

A Senate confirmation hearing Wednesday for Lina Khan's appointment to a commissioner's seat on the Federal Trade Commission will mark a watershed moment in federal efforts to rein in big tech companies.

Why it matters: Khan, who has helped define broad new ways to think about how antitrust law should apply to modern technology companies, has had temporary government roles before. But a seat on the FTC, which has the power to investigate and sue companies, would put her at the center of D.C.'s regulatory action.

Catch up quick: Khan, 32, currently associate professor of law at Columbia University, rose to prominence in 2017 after her Yale Law Journal article "Amazon's Antitrust Paradox" argued that Amazon's retail business should be separated from its selling platform.

  • Khan is a hero for critics of tech who want to see broader principles replace the "consumer welfare" standard of antitrust, under which harm from a company's monopolistic behavior is judged largely by whether consumer prices rise.
  • She served as a legal fellow in FTC commissioner Rohit Chopra's office in 2018. Chopra, President Biden's pick to chair the Consumer Financial Protection Bureau, has been an aggressive advocate for tough actions against tech companies.
  • Khan and Chopra wrote a paper last year arguing the FTC has the authority to craft new rules targeting anticompetitive practices, an idea gaining traction at the agency.
  • She went on to serve as majority counsel for the House Judiciary antitrust subcommittee, helping shape a sweeping report published after a year-long investigation.
  • In pre-hearing statements, Khan argues that the FTC must update how it assesses legal violations and unfair and deceptive conduct and should be given power to win monetary relief for victims of illegal activity.

What they're saying: Some Republicans are preparing to question Khan's appointment.

  • One Commerce Committee Republican, Sen. Mike Lee of Utah, said last month that Khan lacks the experience necessary for the role and her antitrust views go too far. "This moment is too important for our antitrust enforcers to be learning on the job," Lee said in March. (His office did not respond to a request for comment.)
  • Mississippi Sen. Roger Wicker, the ranking Republican on the Commerce Committee, has not taken a position on the appointment. Wicker may ask Khan about how a key liability statute — Section 230 of the Communications Decency Act — affects the FTC's ability to police unfair or deceptive acts in online markets, a spokesperson told Axios.
  • Other pro-tech and free market groups have decried Khan's ideas as heavy-handed, overreaching and out of touch with how people actually use and enjoy technology platforms.

The other side: If Khan gets confirmed, "it suggests that the administration is serious about meaningful enforcement of the antitrust laws after 40 years of a disastrous pro-concentration approach," said Sarah Miller, executive director of the American Economic Liberties Institute.

1 fun thing: In a sign of her popularity among progressives, Khan's got her name on a mug — alongside White House technology adviser Tim Wu, another antitrust firebrand, and potential Justice Department antitrust chief nominee Jonathan Kanter.

What to watch: The hearing will show how eagerly Democrats rally around Khan — and whether any populist-leaning Republicans, who have been loud in their complaints about tech power, join in.

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