Why Biden's FTC pick is bad news for Big Tech

UPDATE, JUNE 15, 2021: Lina Kahn was confirmed by the U.S. Senate in a 69-28 vote.

In a bad sign for Big Tech, President Joe Biden announced on Monday that he is nominating Columbia Law School professor Lina Khan for commissioner of the Federal Trade Commission.

At 32, she would be the youngest FTC commissioner ever, Politico reported.

"As consumers, as users, we love these tech companies," Khan told the New York Times in 2018. "But as citizens, as workers, and as entrepreneurs, we recognize that their power is troubling. We need a new framework, a new vocabulary for how to assess and address their dominance."

Khan still has to make it through a Senate confirmation before becoming one of five commissioners at the FTC.

She'd likely fill the seat currently held by Rohit Chopra, who will head the Consumer Financial Protection Bureau. The White House and Khan did not immediately respond to a request for comment from Mashable.

This comes after Tim Wu, a Columbia University law professor, announced he would be joining the Biden administration to advise on technology and competition policy. Wu, who helped coin the term "net neutrality," wrote the 2018 book The Curse of Bigness: Antitrust in the New Gilded Age. It argued that major tech companies need to be broken up and discussed the dangers of Big Tech getting bigger.

"Extreme economic concentration yields gross inequality and material suffering, feeding the appetite for nationalistic and extremist leadership," he wrote in his book, according to the Times. "Most visible in our daily lives is the great power of the tech platforms, especially Google, Facebook and Amazon."

Josh Stager, deputy director of broadband and competition policy at New America's Open Technology Institute, told Mashable in a statement that both Wu and Khan are "proven thought leaders."

"They've rightly criticized antitrust enforcement for being stuck in 1970s thinking, and demonstrated how that approach has particularly failed us in digital markets," Stager said. "They would bring fresh perspectives to the federal government."

Not everyone will be happy about the new faces. They signal that Biden could be more aggressive than former President Barack Obama in regulating tech giants such as Amazon, Apple, Google, and Facebook.

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Trouble for Big Tech?

When Khan was a law student at Yale, she wrote "Amazon’s Antitrust Paradox," a paper the New York Times called a "runaway best-seller in the world of legal treatises." In it, she argued that Amazon could be violating antitrust law and undermining its competitors.

"Amazon is not the problem — the state of the law is the problem, and Amazon depicts that in an elegant way," she told the Times in 2018.

She also examined Google's conduct as an aide to a House Judiciary antitrust subcommittee investigation into Big Tech, Politico reported. In her past work at the FTC as a fellow in Chopra’s office, she argued for increased regulation of big tech companies.

She also helped produce a 400-page report from House Democrats arguing tech giants needed to be regulated in response to their anti-competitive practices, Recode reported.

She'll be overseeing a huge Facebook case

If Khan makes it to the post at the FTC, she would have the opportunity to oversee the FTC suit against Facebook, which alleges the company "is illegally maintaining its personal social networking monopoly through a years-long course of anticompetitive conduct."

The suit claims that Facebook chose to buy companies instead of compete with them. Then, the suit claims, when it couldn't buy a company like Vine, Facebook made it difficult for them to gain users.

The result of the suit could be minimal, or it could lead to the company divesting ownership of WhatsApp and Instagram.

But it's not an easy in for Khan

Utah Sen. Mike Lee, the top Republican on the Senate Judiciary subcommittee on antitrust, told CNBC in a statement on Tuesday that Khan's potential nomination is "deeply concerning."

"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 told CNBC. "Her views on antitrust enforcement are also wildly out of step with a prudent approach to the law."

NetChoice, a trade group both Facebook and Google are members of, also oppose Khan's nomination. Carl Szabo, the vice president and general counsel of NetChoice, said in a statement that Khan is a "radical pick for Biden's administration."

"No doubt Khan's antitrust activism has been influential and impactful to many progressives, but she is more interested in subjectively changing antitrust law than in analyzing and enforcing the law as it stands," Szabo said. "As a result, Ms. Khan would move the FTC away from its role as an impartial body that enforces the law toward becoming a tool for progressive activists to change the law."

Khan still has to make it through the Senate confirmation process. But some people in Silicon Valley have to be nervous.

UPDATE: March 22, 2021, 4:33 p.m. EDT This post has been updated to include President Joe Biden's announcement that he intends to nominate Lina Khan for FTC commissioner. It has also been updated to include comment from Carl Szabo, the vice president and general counsel of NetChoice.