What can’t Jonathan Kanter do?

Biden's nominee to lead the DOJ's antitrust section may face calls to remove himself from issues as weighty as cracking down on Google and Apple.

Jonathan Kanter

DOJ antitrust nominee Jonathan Kanter's work as a corporate lawyer may require him to recuse himself from certain cases.

Photo: New America/Flickr

Jonathan Kanter, President Joe Biden's nominee to run the Justice Department's antitrust division, has been a favorite of progressives, competitors to Big Tech companies and even some Republicans due to his longtime criticism of companies like Google.

But his prior work as a corporate lawyer going after tech giants may require him to recuse himself from some of the DOJ's marquee investigations and cases, including those involving Google and Apple.

Requests for recusal have recently emerged as one of Big Tech's weapons as it fights rising antitrust scrutiny. Facebook and Amazon have already pushed for Federal Trade Commission chair Lina Khan to remove herself from matters involving their companies, citing her writing, her work with think tanks and her time as a congressional staffer.

Yet Kanter may have done even more to invite antitrust scrutiny on Big Tech — and the rules he faces at the DOJ may be tighter.

As a lawyer for Yelp, News Corp. and other companies that frequently criticize Big Tech, Kanter eagerly pushed government enforcers to file a range of competition lawsuits, especially against Google. He often argued that the company privileged its own properties over those of competitors like Yelp in search results and criticized Google's dominance in the online ad market. In a 2018 testimony before the Senate, he argued "that concentrated economic power could pose as great a threat to liberty as political power" and scolded courts and government enforcers who narrowed deliberately broad competition laws.

The Department of Justice's own lawsuit, filed last October, makes a slightly different case against Google, focusing on the company's alleged monopolization of online search. But the issue Yelp's describing — involving alleged search bias — did make it into a multistate complaint that was filed in December, and courts are now consolidating that case with the federal one.

Under federal regulations, government appointees who have worked on "a particular matter involving specific parties" under their official remit must recuse themselves for one year. On his first day in office, Biden also issued an ethics order requiring appointees to extend that cooling off period to two years. The rules already raised concerns among White House ethics officials about nominees like Kanter, according to an April report.

"If he was representing Yelp in the same or a substantially related complaint, then you wouldn't want it to appear that he was carrying water for any particular former client," said Virginia Canter, a former lawyer in the Clinton and Obama White Houses who is now chief ethics counsel of the transparency group Citizens for Responsibility and Ethics in Washington. "There should be no question about whether or not the public interest is being served."

In addition, last year, Kanter left as co-chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton & Garrison. The firm is now representing Apple in a lawsuit by Epic Games, among other matters. The two-year restriction in Biden's ethics order also extend to clients of recent former employers, and the Justice Department is indeed investigating Apple. As if that weren't complicated enough, Kanter himself has represented Apple complainants like Spotify.

Progressives who supported Kanter cheered his long-term antagonism of Big Tech and support of smaller competitors like Yelp. Yet Kanter's former firm has also represented Mastercard, Cigna and other big companies in competition matters. Nearly a decade ago, at a prior firm, Kanter even won an award for his work helping Microsoft navigate its acquisition of Skype.

His work for complainants against Big Tech doesn't automatically require recusal. Canter and others said the administration will probably weigh how closely his own advocacy mirrored the DOJ's cases, as well as other variables, like whether his former clients are witnesses, various bar rules, appearances of conflict and whether he's really switching sides or merely switching roles on the same side.

"You really have to look at all the particulars," Canter said. "You don't want to knock somebody out if you don't have to."

Biden's order also allows for waivers when "the literal application of the restriction is inconsistent with the purposes of the restriction." That, some say, could cover someone like Kanter transitioning from helping the government as a private lawyer to overseeing the government's work. Waivers also need to be in the public interest, including "exigent circumstances relating to ... the economy."

Recusals from matters involving Big Tech, however, would not be unprecedented: The head of the antitrust division under Trump, Makan Delrahim, eventually recused himself from the Google investigation. He'd lobbied for the company's acquisition of DoubleClick more than a decade earlier.

Asked whether recusals or a waiver were necessary, a White House official would say only that the administration is "confident moving forward with Kanter for the position given his track record and expertise." Google declined to say whether it planned to seek Kanter's recusal.

Some defenders of competition enforcement have said that Facebook and Amazon's calls for Khan's recusal at the FTC are really just efforts to escape legal scrutiny. Big Tech critics argue that rather than citing any actual conflict of interest, like switching from the plaintiff's side to the defense's in a case, these companies are more or less complaining about the very traits that make Khan qualified for the job.

Some have said the same about Kanter, particularly following a POLITICO story on potential administration concerns about nominees with histories like his. Jeff Hauser, a former Justice Department antitrust lawyer who tracks corporate officials in government, tweeted at the time that Kanter will help the Justice Department, as his private sector experience makes him a better choice for the job and is "very different from defending corporations accused of violating antitrust law."

Some Kanter defenders acknowledged tech companies could raise concerns as well, although certain issues may be moot. The U.S. case against Google has already launched, for instance, and the two-year ban could expire before a trial, which is scheduled for late 2023.

Even if Kanter does have to recuse himself, "DOJ can still do aggressive work against these companies," said Alex Harman, competition policy advocate at the liberal group Public Citizen, which has backed Kanter.

Unlike the FTC, an independent agency where partisan commissioners vote, the Justice Department is supposed to follow the president's vision of expanded competition enforcement, Harman noted. Even if Kanter didn't participate in litigation strategy or potential settlement negotiations, he could still point the division toward a harder line on concessions, more aggressive merger challenges, expanded theories of harm and more plaintiff-friendly trends in market definition. Whatever department lawyer would oversee the case in the meantime would likely be well aware of the new course that the division chief had set.

"It's a lot of nothing when somebody has to recuse at an agency," Harman said, although he added it might well be necessary. "He's there because of his experience and his viewpoint, and if he hadn't been working, he wouldn't have this experience."


A pro-China disinformation campaign is targeting rare earth miners

It’s uncommon for cyber criminals to target private industry. But a new operation has cast doubt on miners looking to gain a foothold in the West in an apparent attempt to protect China’s upper hand in a market that has become increasingly vital.

It is very uncommon for coordinated disinformation operations to target private industry, rather than governments or civil society, a cybersecurity expert says.

Photo: Goh Seng Chong/Bloomberg via Getty Images

Just when we thought the renewable energy supply chains couldn’t get more fraught, a sophisticated disinformation campaign has taken to social media to further complicate things.

Known as Dragonbridge, the campaign has existed for at least three years, but in the last few months it has shifted its focus to target several mining companies “with negative messaging in response to potential or planned rare earths production activities.” It was initially uncovered by cybersecurity firm Mandiant and peddles narratives in the Chinese interest via its network of thousands of fake social media accounts.

Keep Reading Show less
Lisa Martine Jenkins

Lisa Martine Jenkins is a senior reporter at Protocol covering climate. Lisa previously wrote for Morning Consult, Chemical Watch and the Associated Press. Lisa is currently based in Brooklyn, and is originally from the Bay Area. Find her on Twitter ( @l_m_j_) or reach out via email (ljenkins@protocol.com).

Some of the most astounding tech-enabled advances of the next decade, from cutting-edge medical research to urban traffic control and factory floor optimization, will be enabled by a device often smaller than a thumbnail: the memory chip.

While vast amounts of data are created, stored and processed every moment — by some estimates, 2.5 quintillion bytes daily — the insights in that code are unlocked by the memory chips that hold it and transfer it. “Memory will propel the next 10 years into the most transformative years in human history,” said Sanjay Mehrotra, president and CEO of Micron Technology.

Keep Reading Show less
James Daly
James Daly has a deep knowledge of creating brand voice identity, including understanding various audiences and targeting messaging accordingly. He enjoys commissioning, editing, writing, and business development, particularly in launching new ventures and building passionate audiences. Daly has led teams large and small to multiple awards and quantifiable success through a strategy built on teamwork, passion, fact-checking, intelligence, analytics, and audience growth while meeting budget goals and production deadlines in fast-paced environments. Daly is the Editorial Director of 2030 Media and a contributor at Wired.

Ripple’s CEO threatens to leave the US if it loses SEC case

CEO Brad Garlinghouse said a few countries have reached out to Ripple about relocating.

"There's no doubt that if the SEC doesn't win their case against us that that is good for crypto in the United States,” Brad Garlinghouse told Protocol.

Photo: Stephen McCarthy/Sportsfile for Collision via Getty Images

Ripple CEO Brad Garlinghouse said the crypto company will move to another country if it loses in its legal battle with the SEC.

Garlinghouse said he’s confident that Ripple will prevail against the federal regulator, which accused the company of failing to register roughly $1.4 billion in XRP tokens as securities.

Keep Reading Show less
Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers crypto and fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Google Voice at (925) 307-9342.


The Supreme Court’s EPA ruling is bad news for tech regulation, too

The justices just gave themselves a lot of discretion to smack down agency rules.

The ruling could also endanger work on competition issues by the FTC and net neutrality by the FCC.

Photo: Geoff Livingston/Getty Images

The Supreme Court’s decision last week gutting the Environmental Protection Agency’s ability to regulate greenhouse gas emissions didn’t just signal the conservative justices’ dislike of the Clean Air Act at a moment of climate crisis. It also served as a warning for anyone that would like to see more regulation of Big Tech.

At the heart of Chief Justice John Roberts’ decision in West Virginia v. EPA was a codification of the “major questions doctrine,” which, he wrote, requires “clear congressional authorization” when agencies want to regulate on areas of great “economic and political significance.”

Keep Reading Show less
Ben Brody

Ben Brody (@ BenBrodyDC) is a senior reporter at Protocol focusing on how Congress, courts and agencies affect the online world we live in. He formerly covered tech policy and lobbying (including antitrust, Section 230 and privacy) at Bloomberg News, where he previously reported on the influence industry, government ethics and the 2016 presidential election. Before that, Ben covered business news at CNNMoney and AdAge, and all manner of stories in and around New York. He still loves appearing on the New York news radio he grew up with.


Microsoft and Google are still using emotion AI, but with limits

Microsoft said accessibility goals overrode problems with emotion recognition and Google offers off-the-shelf emotion recognition technology amid growing concern over the controversial AI.

Emotion recognition is a well-established field of computer vision research; however, AI-based technologies used in an attempt to assess people’s emotional states have moved beyond the research phase.

Photo: Microsoft

Microsoft said last month it would no longer provide general use of an AI-based cloud software feature used to infer people’s emotions. However, despite its own admission that emotion recognition technology creates “risks,” it turns out the company will retain its emotion recognition capability in an app used by people with vision loss.

In fact, amid growing concerns over development and use of controversial emotion recognition in everyday software, both Microsoft and Google continue to incorporate the AI-based features in their products.

“The Seeing AI person channel enables you to recognize people and to get a description of them, including an estimate of their age and also their emotion,” said Saqib Shaikh, a software engineering manager and project lead for Seeing AI at Microsoft who helped build the app, in a tutorial about the product in a 2017 Microsoft video.

Keep Reading Show less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories