One by no means is aware of how a confirmation hearing will go today, particularly one for a younger outsider nominated to an necessary place regardless of difficult the established order and massive enterprise. Lina Khan, simply such a particular person up for the place of FTC Commissioner, had a surprisingly nice time of it throughout right this moment’s Senate Commerce Committee confirmation hearing — presumably as a result of her iconoclastic method to antitrust makes for good politics today.
Khan, an affiliate professor of regulation at Columbia, is greatest recognized within the tech group for her incisive essay “Amazon Antitrust’s Paradox,” which laid out the failings of regulatory doctrine which have allowed the retail large to progressively dominate an increasing number of markets. (She additionally lately contributed to a House report on tech policy.)
When it was printed, in 2018, the sensation that Amazon had begun to abuse its place was, although commonplace in some circles, probably not in style within the Capitol. But the rising sense that laissez-faire or inadequate rules have created monsters in Amazon, Google, and Facebook (to start out) has led to a uncommon bipartisan settlement that we should discover a way, any means will do, of placing these upstart firms again of their place.
This in flip led to a sense of shared function and camaraderie within the confirmation hearing, which was a triple header: Khan joined Bill Nelson, nominated to steer NASA, and Leslie Kiernan, who would be a part of the Commerce Department as General Counsel, for a really nice little three-hour chat.
Khan is one among a number of within the Biden administration who sign a new method to taking up Big Tech and different companies which have gotten out of hand, and the questions posed to her by Senators from each side of the aisle appeared real and obtained genuinely passable solutions from a assured Khan.
She deftly prevented a few makes an attempt to bait her — together with one involving Section 230; incorrect Commission, Senator — and her solutions primarily reaffirmed her skilled opinion that the FTC must be higher knowledgeable and extra preemptive in its method to regulating these secretive, highly effective firms.
Here are a few snippets consultant of the questioning and indicative of her positions on a few main points (solutions flippantly edited for readability):
On the FTC getting concerned within the combat between Google, Facebook, and information suppliers:
“Everything needs 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 is resulting when we don’t have reliable sources of local news.”
She additionally cited the rising focus of advert markets and the arbitrary nature of, for instance, algorithm adjustments that may have wide-ranging results on whole industries.
On Clarence Thomas’s troubling suggestion that social media corporations must be thought-about “common carriers”:
“I think it prompted a lot of interesting discussion,” she stated, very diplomatically. “In the Amazon article, I identified two potential pathways forward when thinking about these dominant digital platforms. One is enforcing competition laws and ensuring that these markets are competitive.” (i.e. utilizing antitrust guidelines)
“The other is, if we instead recognize that perhaps there are certain economies of scale, network externalities that will lead these markets to stay dominated by a very few number of companies, then we need to apply a different set of rules. We have a long legal tradition of thinking about what types of checks can be applied when there’s a lot of concentration and common carriage is one of those tools.”
“I should clarify that some of these firms are now integrated in so many markets that you may reach for a different set of tools depending on which specific market you’re looking at.”
(This was a very well mannered means of claiming widespread carriage and current antitrust guidelines are completely unsuitable for the job.)
On doubtlessly reviewing previous mergers the FTC authorized:
“The resources of the commission have not really kept pace with the increasing size of the economy, as well as the increasing size and complexity of the deals the commission is reviewing.”
“There was an assumption that digital markets in particular are fast moving so we don’t need to be concerned about potential concentration in the markets, because any exercise of power will get disciplined by entry and new competition. Now of course we know that in the markets you actually have significant network externalities in ways that make them more sticky. In hindsight there’s a growing sense that those merger reviews were a missed opportunity.”
(Here Senator Blackburn (R-TN) in one of many few detrimental moments fretted about Khan’s “lack of experience in coming to that position” earlier than asking about a spectrum plan — incorrect Commission, Senator.)
On the problem of implementing one thing like an order in opposition to Facebook:
“One of the challenges is the deep information asymmetry that exists between some of these firms and enforcers and regulators. I think it’s clear that in some instances the agencies have been a little slow to catch up to the underlying business realities and the empirical realities of how these markets work. So at the very least ensuring the agencies are doing everything they can to keep pace is gonna be important.”
“In social media we have these black box algorithms, proprietary algorithms that can sometimes make it difficult to know what’s really going on. The FTC needs to be using its information gathering capacities to mitigate some of these gaps.”
On extending protections for kids and different susceptible teams online:
Some of those risks are heightened given a few of the methods during which the pandemic has rendered households and youngsters particularly depending on a few of these [education] applied sciences. So I feel we have to be particularly vigilant right here. The earlier guidelines must be the ground, not the ceiling.
Overall there was little partisan bickering and a lot of feeling from each side that Khan was, if not technically skilled on the job (not uncommon with a coveted place like FTC Commissioner), about as competent a nominee as anybody might ask for. Not solely that however her extremely thought-about and pretty assertive positions on issues of antitrust and competitors might assist put Amazon and Google, already within the regulatory doghouse, on the defensive for as soon as.