Lina Khan ushers in new era of antitrust at the FTC

Lina Khan, one of Big Tech’s fiercest critics, was sworn in as chair of the Federal Trade Commission (FTC) this week just hours after being confirmed by the US senate.

The senate overwhelmingly approved Khan’s nomination in a 69-28 vote, highlighting the growing bipartisan appetite for increased scrutiny of tech (though often for vastly different reasons). At just 32 years old, Khan will be both the youngest commissioner confirmed to the agency and the youngest FTC chair in the agency’s 107-year-history.

Khan wants to radically reimagine the consumer welfare standard at the crux of current US antitrust enforcement:

• In her much-cited 2017 Yale Law Journal article “The Antitrust Paradox,” Khan argued the consumer welfare standard has left US antitrust, “unequipped to capture the architecture of market power in the modern economy.”
• Khan argues the consumer welfare standard is insufficient in the digital economy, where companies like Amazon, Google, and Facebook are able to offer services at little or no upfront cost to consumers.
• Khan has signaled an interest in market structures and competition, which would place a higher burden on dominant platforms like Amazon from trying to use their prowess in one sector to advance other lines of business, such as healthcare and shipping.

Khan will be empowered to steer the FTC toward a more progressive era of antitrust law and potentially accelerate Big Tech enforcement:

Insider Intelligence senior analyst Sara M. Watson says, “Lina Khan’s leadership represents a paradigm shift in antitrust interpretation and enforcement and will have huge implications for checking the consolidated power of Big Tech firms.”

While the FTC’s enforcement power is tied to its interpretation of the law, US legislators are simultaneously considering a suite of new bills aimed at radically overhauling antitrust legislation. This multi-pronged approach to antitrust reform could have a significant impact, according to Watson. “Having Khan in the driver’s seat on antitrust enforcement will be just one vector for modernizing consumer protection for the digital economy, alongside significant legislative reform.”

Industry giants are already gearing up for an era of increased regulatory combat.

In a statement, the Information Technology & Innovation Foundation, a public policy group whose funders include major tech companies, called Khan’s chair appointment, “the result of growing bipartisan support for a populist approach to antitrust,” and warned the changing tides could “cause lasting self-inflicted damage that benefits foreign, less meritorious rivals. “Antitrust populism is inevitably going to become the governmental policy stance.”