'Enforcers are not gonna back down': Lina Khan talks rewriting the rules of antitrust

In her first TV interview since becoming chair of the Federal Trade Commission, Lina Khan had a message for business executives who think their money, lawyers and lobbyists will shield them from antitrust scrutiny: "Enforcers are not gonna back down."

Over the course of a lengthy CNBC interview Wednesday, Khan expounded on the ways in which she believes antitrust enforcement in America needs to change, a process that is already underway at the FTC. This week, Khan and Jonathan Kanter, the Department of Justice's top antitrust cop, announced a plan to review policies related to mergers, signaling their intention to scrutinize more deals that once flew under the radar.

"The project of potentially revising the guidelines is to basically identify: What are the blind spots right now?" Khan said during Wednesday's interview.

She went on to explain why she thinks such a review is long overdue, saying that Congress first determined that mergers that "substantially lessen competition or tend to create a monopoly" are illegal back in 1914. "What that means in practice is going to change depending on the economy," she said. "As we've seen, the growth of new technologies, the market dynamics have changed, and so we need to make sure that the tools we're using, the frameworks we're using, the questions that we're asking, are actually still mapping onto the reality."

That reality, Khan argued, includes massive digital operations that offer their services for free, but often cost consumers their privacy. Those kinds of harms — see also, labor harms and quality degradation — haven't traditionally factored into antitrust discussions, which have focused primarily on whether companies are using their market power to raise prices. Khan said she wants to refocus enforcers' attention on a broader spectrum of harm, and pointed to the FTC's recently amended case against Facebook (now Meta) as evidence of that approach. Earlier this month, a federal judge allowed the complaint to proceed.

"There was an important discussion in that opinion around the ways in which the courts can understand non-price harms," Khan said Wednesday. "Certain types of quality degradation, certain types of harms to privacy, those could be recognized as harms, even if you're not seeing an increase in the dollar price that people are are paying."

Even as this new approach potentially broadens the scope of enforcement actions the FTC could take, however, Khan noted that the commission is as constrained as it's ever been in terms of funding. "We are severely under-resourced," she said.

That means that the FTC will continue to have to prioritize certain cases over others. Khan said cases that stand to have a deterrence effect or an impact on a broader market beyond a single company will be a top priority. So will cases involving "intermediaries or companies that may be facilitating bad practices going upstream," Khan said. Khan emphasized that this work will not be exclusive to the tech industry, despite her well-known reputation as a tech critic, particularly when it comes to Amazon. And she said enforcement may also need to apply retroactively to deals that didn't get adequate scrutiny the first time around.

"The FTC ended up bringing this enforcement action against Facebook significantly after the fact because we thought it was important to ensure that the marketplace knew that these types of deals are not going to be immunized," Khan said.