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Lina Khan’s Tight Timetable for Tackling Big Tech

The FTC chair is wielding antitrust law while watching the clock.
July 14, 2022
Lina Khan’s Tight Timetable for Tackling Big Tech
UNITED STATES - MAY 18: FTC Chairwoman Lina Khan and SEC Chairman Gary Gensler testify during the House Appropriations Subcommittee on Financial Services and General Government hearing titled FY2023 Budget Request for the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC), in Rayburn Building, on Wednesday, May 18, 2022. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

The Biden administration has produced few standouts—officials whose ability as political leaders, crafters of policy, mass communicators, or champions of the public interest has been especially impressive. One exception: Lina Khan, the chair of the Federal Trade Commission. The 33-year-old has proven to be a fighter who has successfully challenged some of the nation’s most powerful corporations—from Lockheed Martin to Meta Platforms—and who can solidify her star status by making moves some observers believe she may soon undertake, such as attempting to break up Amazon and regulate Google.

In the year she has run the FTC, an agency charged with protecting consumer rights, Khan has transformed it into a formidable political and economic force. Decisions that in the past would have been pro forma when the agency was merely another stop in the federal government’s bureaucracy, especially on matters involving mergers and acquisitions, are now anything but. That’s because Khan, a soft-spoken media-shy professional who knows how to wield her considerable power, has used the FTC to advance a theory growing in popularity in certain business and legal circles: the belief that some corporations—and in particular Big Tech companies—have grown so large that their monopolistic practices are destroying American capitalism and threatening the future of democracy.

“Given her background,” says Frankie Sue Del Papa, the former attorney general of Nevada, “I think Lina Khan is well-positioned to know the subject matter and to know what needs to be done and the path to take.” Raymond Gifford, a former state public utilities commissioner in Colorado, agrees: “This is a new FTC. Khan has abruptly changed the culture there. She is putting together a program radical in her agenda and her intended political sensibilities. She won’t win any popularity contests.”

Perhaps, but her strategy has been impressive—and often effective. In her first year, she blocked two major mergers. In February 2022, Nvidia announced the end of its attempt to acquire Arm Limited from SoftBank Group, a merger the FTC worked to block. That same month, Lockheed Martin abandoned its attempt to buy Aerojet Rocketdyne after a Khan-led FTC voted 4-0 to prevent the acquisition.

Khan’s theory is simple: Monopolies harm the nation because they stifle competition, the lifeblood of capitalism. Which is why Khan has long set her sights on Amazon, a corporation she sees as a prime example of predatory business practices. Google, of course, is not far behind.

While her achievements are noteworthy, some industry insiders remain skeptical, largely because the Biden administration has developed the reputation of being a do-little—and in some cases do-nothing—enterprise. “Before we have a sense of where things might be going at the FTC,” one antitrust expert told me, “we need evidence of commitment by the Biden enforcers to implement a more vigorous enforcement agenda. Antitrust enforcement is advanced largely through case law. That means we are keeping our eyes on antitrust cases brought by the FTC, how those cases were litigated, and the types of remedies obtained.”

So the focus is on what Khan will do next. As it happens, she is more than used to being in the spotlight.

Lina M. Khan was born in London in 1989 to Pakistani parents—her mother worked in information services, her father in management consulting—who moved their family to Mamaroneck, a suburb north of New York City, when she was eleven. Public school was followed by Williams College, where she served as editor of the student newspaper and wrote her senior thesis on Hannah Arendt. Graduating in 2010, Khan was hired a year later as a policy analyst at the New America Foundation, a centrist think tank with a program on tech policy.

It was here, in 2011, that she first began to study Big Tech. Her research contributed to a 2012 Harper’s article by Barry C. Lynn, then a New America fellow and the director of its Open Markets program, entitled “Killing the Competition: How the new monopolies are destroying open markets.” In the article Lynn warned: “What is at stake is the survival of our democratic republic.” That core fear—that Big Tech companies have become so massive they are killing capitalism and threatening democracy itself—came to define Khan’s mission, at least as regards the function of American business. Competition must be protected at all costs.

In 2014, Khan entered Yale Law School, where she continued to study Big Tech. The result of that scholarship came in 2017 when the Yale Law Journal published her 93-page, heavily researched article “Amazon’s Antitrust Paradox,” a treatise that proposed antitrust laws should be used not only to protect consumer welfare standards, which had been their accepted application for 40 years, but also to challenge the market dominance of Big Tech by promoting competition. Khan selected the title as a reference to (and dig at) The Antitrust Paradox, Robert Bork’s 1978 book in which he argued that the main purpose of antitrust laws was to protect consumer welfare. Indeed, to defend companies harmed by Amazon, Khan suggested Amazon either should be “forc[ed] to split up its retail and Marketplace operation[s]” or be controlled by “public utility regulations and common carrier duties.” It was a radical concept.

As soon as her article appeared, buzz swept through the legal and business communities with the New York Times declaring that it had “reframed decades of monopoly law.” As a result of the hype, Khan found herself being touted as an outside-the-box thinker with a stellar future. Joshua Wright, a former Republican Federal Trade Commissioner, tried to downplay the new Khan doctrine by coining a snarky term for it—“hipster antitrust”— which only made Khan even more buzzworthy. For her part, Khan began to call her pro-competition campaign the New Brandeis Movement, a reference to Supreme Court Justice Louis Brandeis, who in the early twentieth century targeted monopolistic companies in the fields of oil, steel, and railroad for divestment.

After Yale, Khan returned to Open Markets (now a freestanding institute) as its legal director; once again, she focused on Big Tech companies like Google, which made news around this time when, according to the New Yorker, “the European Union announced that it was fining Google $2.7 billion for antitrust violations, accusing the company, in its shopping services, of ranking its own products higher in its search results than those of its competitors.” Here was one more example of what Khan was coming to believe: Big Tech companies like Google needed to be reined in either through antitrust action or regulation.

In 2018, Khan served as legal counsel to both FTC Commissioner Rohit Chopra and the House Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law. In 2020, she was named an associate professor at Columbia Law School. And in March 2021, now that she had established herself as a rising star in the field of antitrust law, Joe Biden appointed her to the FTC. After the Senate confirmed her in a bipartisan vote of 69 to 28 on June 15, Biden named her chair, making her the youngest person to hold that position in the history of the FTC.

Khan has been on the job for a little over a year now—and an eventful year it has been. But her time may be limited: Although the FTC chair can stay on for a full seven-year term, typically the chair resigns around the time a new president comes in. And so, because of Biden’s perceived weakness, some observers think Khan may only have two more years or so to accomplish her goals.

Khan believes that existing antitrust legislation—the Sherman Act of 1890, the Clayton Act of 1914, and the FTC Act of 1914—can be used today to break up Big Tech companies, just as they were used to combat the robber barons controlling the American economy around the turn of the twentieth century. Khan has argued, Business Week noted last month, “that the commission—created in 1914 by lawmakers who wanted to bust up the railroad, meatpacking, and oil monopolies of the day—is the perfect vehicle for a complete overhaul of antitrust enforcement because it has broad authority to police business conduct and mergers.”

The FTC is using this approach to take on Facebook. In one of the oddities of our political moment, both the right and the left have complaints about Big Tech, which is how it came to pass that the lame duck Trump administration filed an antitrust suit against Facebook in December 2020, spurred on by grievances Trump developed toward the outlet, and argued that the company needed to be forced to sell Instagram and WhatsApp. Once Biden became president, a federal judge dismissed the suit—in a ruling that outlined its many glaring inadequacies—but allowed the FTC, now chaired by Khan, to amend the complaint to salvage the litigation. Once revised, the complaint was advanced by the judge. As now written, the lawsuit would effectively break up Facebook, now called Meta Platforms, a goal Khan has openly advocated for years.

Khan could likely take a similar action against Amazon, the company that has commanded her attention since law school. A divestiture of its various companies could be a potential remedy to its antitrust behavior. With Google, however, there might be a somewhat different approach. The attorney general of Ohio, Dave Yost, a Republican, has filed a lawsuit demanding that Google be regulated as a common carrier, a company that provides telecommunication faculties for the public.

Yost filed the lawsuit on behalf of Ohio, the first state to file such a complaint, in June 2021. The action did not seek money damages but instead the ability of the state to regulate Google, which, Yost said at the time, “uses its dominance of internet search to steer Ohioans to Google’s own products,” an obvious act of anti-competitive behavior. The Ohio case is separate from the other traditional antitrust cases filed against Google, including one that now counts more than 30 states as complainants. It is the hope of Yost that, should the antitrust case fail, his attempt to regulate Google may actually succeed.

There is some belief that Khan may direct the FTC to weigh in on either one or both of these lawsuits. She could do so in the form of an amicus brief. “It is my understanding,” Del Papa says, “that Lina Khan wants to work with the states, which is a good move. There is a lot that can be done together.”

Specifically, the FTC could join in Ohio’s efforts to regulate Google, an action against Big Tech that Khan suggested all the way back when she wrote “Amazon’s Antitrust Paradox,” by outlining one method to regulate the tech company. “There is no obvious antitrust solution to what is annoying about Google to my mind,” says Ray Griffin “but the common carrier gambit is getting at something. It dates all the way back to common law in the Middle Ages. There could be a government role in a co-organization, which would be part private and part government, that would regulate Google.”

Both critics and supporters alike are waiting to see if Khan has the nerve to take the actions needed to make herself the king slayer she has fashioned herself to be, an effort that would represent no small feat in an administration that has proven itself to be leery of bold moves and aggressive acts in all areas of government.

Paul Alexander

Paul Alexander has published eight books, focusing on authors Sylvia Plath and J.D. Salinger and political figures Karl Rove, John Kerry, and John McCain. His biography of Salinger was adapted into the documentary Salinger which first appeared on American Masters on PBS.