Lina Khan’s well timed tech skepticism makes for a refreshingly pleasant FTC affirmation listening to – TechCrunch

You never know how a verification hearing will play out these days, especially for a young outsider who has been appointed to an important position despite challenging the status quo and big business. One such person who ran for the position of FTC commissioner, Lina Khan, had a surprisingly pleasant time doing it during today’s Senate Trade Committee confirmation hearing – possibly because her iconoclastic approach to antitrust makes politics good these days.

Khan, an associate professor of law at Columbia University, is best known in the tech community for her succinct essay, “Amazon Antitrust’s Paradox,” which outlined the flaws in regulatory doctrine that have allowed the retail giant to expand into ever increasing markets to dominate. (She also recently contributed to a House report on technology policy.)

When it was released in 2018, the feeling that Amazon had started to abuse its position wasn’t really popular in the Capitol, although it was commonplace in some circles. But the growing sense that laissez-faire or inadequate regulation spawned monsters in Amazon, Google, and Facebook (to begin with) has led to a rare bipartisan agreement that we need to find a way we can do around this to push back emerging companies in their place.

This, in turn, created a sense of shared intent and camaraderie in the confirmation negotiation, which was a triple header: Khan joined Bill Nelson, who was nominated to head NASA, and Leslie Kiernan, who would join the Commerce Department as General Counsel, nicely small three-hour chat.

Khan is one of several in the Biden administration signaling a fresh approach to taking over big tech and other companies that have gotten out of hand, and the questions senators from both sides of the aisle asked them seemed real and was answered really satisfactorily by a confident Khan.

She cleverly avoided a few attempts to bait her – including one involving Section 230; Wrong Commission, Senator – and her answers primarily confirmed her professional opinion that the FTC should be better informed and more preventative in its approach to regulating these secret, powerful corporations.

Here are some excerpts that are representative of the survey and indicate their positions on some important topics (responses edited slightly for clarity):

About the FTC interfering in the battle between Google, Facebook, and news providers:

“Everything has to be on the table. Obviously local journalism is in crisis and I think the current COVID moment has really underscored the deep democratic emergency that arises when we don’t have reliable sources for local news. “

She also referred to the increasing concentration of the ad markets and the arbitrariness of, for example, algorithm changes, which can have far-reaching effects on entire industries.

Credit: Graeme Jennings / Washington Examiner / Bloomberg / Getty Images

On the troubling suggestion by Clarence Thomas that social media companies should be considered “common carriers”:

“I think it sparked a lot of interesting discussions,” she said very diplomatically. “In the Amazon article, I identified two possible ways to think about these dominant digital platforms. One of them is enforcing competition laws and making sure these markets are competitive. “(Ie using antitrust rules)

“The other thing is, if we instead recognize that there may be certain economies of scale, network externalities that mean that these markets are dominated by very few companies, we have to apply a different set of rules. We have a long legal tradition of thinking about what types of controls can be used when there is a lot of concentration and joint promotion is one of those tools. “

“I should make it clear that some of these companies are now integrated into so many markets that there are different tools you can use depending on the market you are looking at.”

(This was a very polite way of saying that joint promotion and the existing antitrust rules are totally inappropriate for the job.)

Upon potential review of previous mergers, the FTC approved:

“The Commission’s resources have not really kept pace with the growing size of the economy, and the increasing size and complexity of the businesses being examined by the Commission.”

“It was assumed that the digital markets in particular would move quickly, so we don’t have to worry about a possible concentration in the markets, as every exercise of power is disciplined by entry and new competition. Now, of course, we know that you actually have significant network externalities in the markets that make them stickier. In retrospect, there is a growing feeling that these merger exams were a missed opportunity. “

(Here Senator Blackburn (R-TN) resented Khan’s “lack of experience in this position” in one of the few negative moments before asking for a frequency plan – wrong commission, Senator.)

On the difficulty of enforcing something like an order against Facebook:

“One of the challenges is the deep information asymmetry that exists between some of these companies and the enforcement agencies and regulators. I think it is clear that in some cases the agencies have been slow to catch up with the underlying business realities and the empirical realities of how these markets work. At the very least, it will be important to make sure the agencies are doing everything they can to keep up. “

“On social media there are these black box algorithms, proprietary algorithms that sometimes make it difficult to know what is really going on. The FTC needs to use its intelligence gathering capabilities to fill some of these loopholes. “

To expand protection for children and other vulnerable groups online:

Some of these dangers are even greater given the way the pandemic has made families and children particularly dependent on some of these dangers [education] Technologies. I think we need to be extra vigilant here. The previous rules should be the floor, not the ceiling.

Overall, there was little partisan controversy and a lot of feeling from both sides that Khan, if not technically experienced in his profession (not infrequently in a coveted position like FTC commissioner), was about as competent as one could wish. Not only that, but also their deliberate and fairly self-confident positions on antitrust and competition issues could help put Amazon and Google, who are already in the regulatory doghouse, on the defensive.