Explained: What does Lina Khan’s appointment indicate for antitrust policy in the United States, elsewhere?

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The Senate confirmation of Big Tech’s voice critic and antitrust scholar Lina Khan as Federal Trade Commission (FTC) commissioner on Tuesday comes amid growing bipartisan consensus on Capitol Hill about the need to tame tech majors American.

Hours after the confirmation, President Joe Biden elevated the Columbia Law School professor to the post of president of the agency legally mandated to protect consumers and promote competition by verifying “anti-competitive, deceptive and unfair business practices” at United States.

In the process, he sent two clear messages: that the tech industry should not expect a continuation of the cordial relations it enjoyed with Barack Obama’s White House; and that these companies may be subject to serious regulatory scrutiny in the coming months.

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In March, less than two months after taking office, Biden appointed Tim Wu, Khan’s colleague at Columbia and outspoken Big Tech critic, as the president’s special assistant for technology and competition policy.

Who is Lina Khan?

Khan is a Pakistani scholar who was an associate professor of law at Columbia before her appointment to the FTC. She has taught and written on “Antitrust Law, Infrastructure Industry Law and the Antimonopoly Tradition”. Prior to joining Columbia, she served as Legal Counsel to the Antitrust, Commercial and Administrative Law Subcommittee of the United States House Judiciary Committee, where she led the Congressional Investigation into Digital Markets and participated in the release of the latest House antitrust report released last year.

The report found that Apple, Facebook, Google and Amazon had “engaged in anti-competitive behavior” and suggested Congress should pass new antitrust legislation to curb this trend.

But it was an academic article Khan wrote in 2017 that propelled her to the forefront in regulatory circles.

What was the paper about?

Entitled “Amazon’s Antitrust Paradox”, Khan’s January 2017 article was a critical examination of the dual role of the online shopping platform – in addition to being a retailer, Amazon had gradually transformed into “a platform. -marketing form, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a television and film producer, a fashion designer, a leading computer hardware manufacturer and host of cloud server space ”.

The document argued that current antitrust laws were unable to address the damage caused by dominant platforms, with Amazon being the center of attention.

Khan said that “the current framework of antitrust laws – particularly its ‘consumer welfare’ competition, defined as short-term price effects – is not equipped to capture the architecture of market power. in the modern economy ”, and that he did not consider“ the potential damage to competition posed by Amazon’s dominance if we measure competition primarily by price and production ”. This dual role “also allows a platform to exploit the information collected on companies using its services to undermine them as competitors”.

Khan proposed two potential regimes to handle the kind of power Amazon wielded: “restore traditional principles of antitrust and competition policy or enforce the obligations and duties of public carriers.”

Why is Khan’s appointment important?

At 32, Khan is the youngest person to ever join and lead the FTC. While there were murmurs of disapproval from Republicans at the time of his appointment – Utah Senator Mike Lee said Khan’s stance on antitrust measures was “extremely out of step with a cautious approach. of the law ”- it was upheld by a 69-28 vote, with a number of Republicans voting with Democrats in a bipartisan endorsement of his views.

When it comes to regulators standing up to Big Tech, the name that comes to mind is Margrethe Vestager, Executive Vice President of the European Commission. Khan’s appointment comes at a time when Vestager is grappling with the added burden of providing ‘strategic direction’ to the political priority ‘A Europe Fit for the Digital Age’, a role that involves the responsibility of empowering actors. digital while continuing to be a competition commissioner. . Khan will have a clearer mandate and fewer conflicts of interest in his role.

Khan is joining the FTC as Congress is set to discuss antitrust reform. But some things need clarity to move forward. For example, Biden has yet to appoint a head of the US Department of Justice’s antitrust division, an agency that shares antitrust enforcement with the FTC. Chances are there is a balance of interests in appointments like this.

While Khan will only have one vote in the five-member FTC, her confirmation gives majority control to Democrats as she joins interim president Rebecca Kelly Slaughter and Rohit Chopra, both of whom have championed a contradictory antitrust agenda .

The other person named by Biden, Wu, coined the term “net neutrality” and wrote a book called The Curse of Bigness: Antitrust in the New Gilded Age (2018), in which he pointed out the dangers of growing up. Big Tech and the potential consequences of “too much power” in the hands of a small number of companies. “Extreme economic concentration generates glaring inequalities and material suffering, fueling the appetite for nationalist and extremist leadership,” Wu said in his book. “Most visible in our daily life is the great power of technological platforms, in particular Google, Facebook and Amazon.”

Khan and Wu both endorse an approach to antitrust laws that goes beyond the impact of large-company market dominance in terms of consumer prices only, and instead examines its more widespread effects on industries, workers. and communities.

What are the signals for India?

Under pressure from national lobbies to counter companies such as Amazon and Flipkart, the government introduced rules a few years ago to prevent e-commerce platforms from selling products that belong to them on their own platforms.

Khan had endorsed the general principle behind this decision – on January 19, 2019, she posted on Twitter: “The idea (behind the new Indian government rules) is that you can either run the market or sell your products on the market. , but not both. The rule addresses a problem that merchants selling on Amazon regularly face: Amazon will spot their best-selling products, then produce an Amazon-branded version, demoting them in search listings and reducing their sales… ”

Khan becomes FTC chairman at a time when New Delhi seeks wider support in its battle against social media platforms on regulatory issues such as reporting disinformation and selective access to encrypted messages.

With the notification at the end of February of the 2021 rules on information technology (guidelines for intermediaries and digital media), the government is preparing for some sort of US pullback as it hardens its position against the big technologies. As a counter-current, New Delhi has tried to mobilize support from the largest anti-Big Tech bloc, the European Union – Vestager was invited in April to speak at the Raisina Dialogue, the prestigious multilateral conference co-hosted by the Ministry of Foreign Affairs.

This article first appeared in the print edition on June 17, 2021 under the title “Heat on Big Tech”.



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