President Joe Biden appointed Lina Khan, one of the most outspoken critics of Big Tech, to chair the Federal Trade Commission in an unexpected move on Tuesday. Khan will have the power to direct the FTC’s agenda in that position, and it’s safe to assume she’ll take a hardline approach on Big Tech.
The conservative Open Competition Center has warned Khan will use “antitrust law as a Trojan horse to push her agendas and policy priorities” — and the tech-backed ITIF has said her plan will create “lasting self-inflicted damage” to the country.
But it isn’t just Khan who has sounded the alarm in the tech industry. Khan’s appointment to the FTC is just one component of the US government’s multifaceted antitrust endeavor, which is generally nonpartisan in nature. After years of wrangling and uncertainty, a bipartisan agreement on tech antitrust is now forming across Congress, the Justice Department, and the Federal Trade Commission – with unforeseeable ramifications for Facebook and Google.
Last week, the House Judiciary Committee released a package of bipartisan bills aimed at limiting tech’s power, including legislation that would allow the Federal Trade Commission and the Department of Justice to break up tech companies by forcing them to sell off parts of their businesses that could lead to conflicts of interest. Chairman Jerry Nadler (D-NY) went even farther on Wednesday, indicating that the committee would move quickly to move forward on the bills, with the package potentially being marked up as early as next week.
The bills would then be voted on by the whole House after they were approved by the committee.
In the Senate, there is also a bipartisan movement to pass similar reforms. Sen. Amy Klobuchar (D-MN) complimented the House’s efforts at a hearing on competition in the smart home industry on Tuesday. Klobuchar had told Politico earlier that day that she will start working on companion bills in the Senate.
These comprehensive competition measures are gaining rare traction in a Congress that loves to postpone dramatic change, largely because of the filibuster. At a House press conference on the bill on Wednesday, members from both parties — including the most progressive and conservative wing of their respective parties — urged their colleagues to embrace the measures. Khan’s nomination was also accepted by the Senate on a bipartisan basis, indicating that there may be broad agreement on these reforms in the upper body.
That unanimity is also critical for Khan because the FTC can’t move forward with her ambitious agenda without congressional support. In comparison to the major internet enterprises it seeks to regulate, the FTC is still very weak, spending less than $350 million each year compared to the billions that companies like Facebook can spend to defend their business. Competition experts believe that taking on Big Tech will require a full-court press effort from every branch of government.
“We need to employ all of the government’s instruments, as well as some new ones, to address this problem,” Charlotte Slaiman, Public Knowledge’s competition policy director, told The Verge on Wednesday. “It will necessitate action by the FTC, Congress, and the Department of Justice.”
Still, when it comes to beefing up the Justice Department, the Biden administration is dragging its feet. Despite the fact that Attorney General Merrick Garland’s antitrust background has been welcomed by tech critics, Biden has yet to name someone to run the department’s antitrust division. The Intercept revealed earlier this year that two attorneys who previously advised tech giants could be considered for the position.
For the time being, the FTC has a Democratic majority, but that could change in the next days and weeks. The Consumer Financial Protection Bureau has been nominated by Democratic Commissioner Rohit Chopra to lead it, and if he is confirmed, the body will be deadlocked once more. This gives Khan a tiny window of opportunity to act quickly before a third Democrat is confirmed at the agency.