When President Joe Biden chose Lina Khan as one of the five seats on the Federal Trade Commission, it was an ominous sign for the largest tech company in the United States.Kahn penned her academic background while still a law student “Amazon’s Antitrust Paradox” An academic 2017 treatise advocating a stricter approach to regulating Seattle beasts.
Prior to law school, Kahn worked for Barry Lin. Dismissal About his positive criticism of Google, a major funder of New America, from the Centrist New America Foundation. After graduating from law school, Kahn was Director of Legal Affairs at Lynn’s new organization, the Open Market Institute.
So if anyone could urge the Federal Trade Commission to more aggressively enforce antitrust laws against large tech companies, it would be Kahn. Kahn’s choice could also suggest that the Biden administration will take a broader and confrontational stance against Big Tech.
However Really The ominous sign of Big Tech happened when Kahn held a confirmation hearing at the Senate Trade Commission on Wednesday.
“I became more and more worried.”
You may have expected the Republicans of the Commission to continue their attacks on Khan. Senators are usually willing to criticize opposition candidates. And for most of the last 50 years, Republicans have tended to prefer a practical approach to antitrust law.
However, at the hearing on Wednesday, only one Republican voted seriously against Khan’s choice. Her concern was not about antitrust law. Senator Marsha Blackburn (R-Tenn.) Said she was worried about Khan’s “career and inexperience” in such senior positions. Kahn is in his early thirties.
Other Republicans appeared to be very enthusiastic about Khan’s hostile stance towards the big tech companies and urged Khan to actively exercise FTC’s regulatory power.
“I think the FTC should do more to curb Big Tech’s anti-competitive abuse,” Senator Ted Cruz (R-Texas) told Khan.
Senator Roger Wicker (R-Miss.) Asked Khan about the “Amazon Antitrust Paradox,” which discusses treating Amazon as a general carrier.He also approved and quoted Recent opinions Judge Clarence Thomas suggested that the law could treat social media giants as common carriers.
Senator Jerry Moran (R-Kan.) Said, “I’ve become more and more concerned about social media companies that promise to be a free and open market for ideas, but they’re telling consumers. I don’t think I support my promise. ” .. Moran has introduced legislation that allows FTC to punish social media companies for non-compliance with their own social media policies.
Democrats tended to focus on a variety of issues, but they were just as critical of big tech companies. Senator Amy Klobuchar (Democratic Party) blew up Google and Facebook in the midst of a recent controversy over the Australian news industry, saying they “tried to take the whole country hostage.” Klobuchar also criticized Apple’s App Store policy.
The right is to learn to love antitrust law — at least for Silicon Valley
It would be misleading to suggest that there is left-right consensus on the best approach to regulating large tech companies. Growing opposition to Republican tech giants is part of a reaction to the increasingly aggressive moderation of social media companies’ right-wing content, including several sites that banned Donald Trump in January. These moderation efforts are clearly popular among Democrats, so we can expect Democratic leaders to thwart legislation like Moran.
But Republican concerns aren’t just about moderation.For example, the Trump administration Google And Facebook At the end of last year, the case was endorsed by the Attorney General of almost every state, the Democratic Party and the Republican Party. And those proceedings did not focus on the issue of content moderation. Rather, they focused on the concerns of traditional antitrust law that had long been held by leftist legal scholars like Khan.
The tech giant’s greatest hope of defeating this populist wave rests on the judiciary. Antitrust law is based on a small set of vague 100-year-old laws that have been interpreted over time by a long series of court decisions. Since the 1980s, judges have become skeptical of strict antitrust enforcement. Over the last 40 years, the Supreme Court has issued a series of rulings that undermine antitrust enforcement.For example, last year, the Federal Court of Appeals FTC proceedings dismissed Qualcomm was abusing its monopoly in the modem chip market.
Antitrust law is not as ideologically polarized as some areas of law, but has traditionally tended to be partisan. Liberal judges usually favor a stricter interpretation of the law than conservatives.For example, in one Breakthrough 2018 decision, All five conservative judges of the Supreme Court voted to uphold the Court of Appeals’ ruling that American Express did not violate antitrust law. All four liberals in the court have signed opposition by Judge Stephen Breyer, who alleges that American Express violated antitrust law.
This could go through a review of antitrust laws, even if most members of Congress believe that the recent antitrust laws are too generous, with the parliament becoming very polarized and dysfunctional. Is low. So, as long as nine members of the court, especially the Supreme Court, support weak antitrust enforcement, there may be little that Khan and other members of the Biden administration can do to curb big tech companies. Hmm. If the court rejects them, the number of large antitrust proceedings filed by the FTC or the Department of Justice is irrelevant.
At least one conservative justice is worried about Big Tech
And this is the reason Recent consent Judge Clarence Thomas of the Supreme Court is very important. This case was not an antitrust case. Rather, it was related to whether Donald Trump violated the First Amendment by blocking users from following him.
But Thomas didn’t get in the way of alerting Facebook, Google, and other tech giants about market dominance. He said Google has a 90 percent market share (it’s not clear which market this refers to) and Facebook has 3 billion users. He warned that such a large market share would give tech giants a lot of control over public communication.
Judge Thomas did not propose any concrete changes to the principles of antitrust law, but he did appear to be sympathetic to the argument that tech giants are abusing their market share. More generally, this is due to the changing view of big tech companies between Republican voters and Republican politicians, which also affects at least some conservative members of the judiciary. Seems to indicate.
If the Google or Facebook proceedings finally reach the Supreme Court, it is impossible to predict how Judge Thomas will decide. And with six conservative judges, Thomas’ support for liberals may not be a definitive vote.
But tech giants can’t be content to face growing hostility from the entire political spectrum and from all three sectors of government. Even if companies can beat the current wave of antitrust lawsuits, the next Republican president shares hostility and antitrust enthusiasm for Donald Trump (and Joe Biden)’s major tech companies. can. And that will sooner or later mean that the judiciary also opposes them.
https://arstechnica.com/?p=1759536 Republicans and Democrats increasingly agree: Big Tech is too powerful