Policy

Khan, Biden's pick for the FTC, rides tech skepticism to warm hearing

Promising to get tough on tech companies may be good for a nomination.

Federal Trade Commission building

President Biden has nominated progressive favorite Lina Khan to the Federal Trade Commission.

Photo: Bloomberg/Getty Images

Tech critic and progressive favorite Lina Khan, whom President Joe Biden has nominated to the Federal Trade Commission, received a surprisingly warm bipartisan welcome as she promised tough enforcement on a sector that increasingly receives scorn from all sides.

"Given the intent of this committee — from left to right, from liberal to conservative — in taking on antitrust and privacy issues, I can't think of a more qualified person to be considered for the FTC," Democratic Sen. Amy Klobuchar, who chairs the antitrust subcommittee, said when introducing Khan.

Khan, currently a law professor at Columbia University, helped ignite the so-called "hipster antitrust" movement when she published a blockbuster 2016 paper in the Yale Law Journal while still a law student, and progressive activists have cheered her nomination.

Multiple Republicans on the Senate Commerce Committee also seemed open to her nomination during a Wednesday hearing. Sen. Ted Cruz, who has voiced loud displeasure with many other Biden nominees, said he looked forward to working with Khan. Sen. Roger Wicker, the panel's top Republican, compared Khan's work on Amazon to recent writings by conservative Supreme Court Justice Clarence Thomas that urged strict regulation of social media companies.

Khan's reception at the hearing is just the latest event showing that many Republicans who are skeptical of Big Tech find common ground with some progressives when it comes to taking on the sector. Khan received multiple questions from Republicans about whether the FTC has any role in policing social media companies' moderation practices, which conservatives allege are biased against them.

She stopped short of saying the FTC should get involved in punishing companies for editorial decisions, which could present free speech concerns. Khan did agree, however, that the agency should gather information on social networks' practices. She added that "common carrier" regulations of the type Thomas floated might be appropriate in some markets, and she frequently asserted that the companies present both competition and privacy concerns.

"It seems like these are growing, increasingly bipartisan concerns," Khan told Cruz.

The FTC and a coalition of 48 states are currently suing Facebook for alleged anticompetitive behavior, particularly with acquisitions. Facebook says that the deals in question were designed to improve users' experience.

Not every Republican agreed with Khan. Some members, particularly Sen. Mike Lee, balked at Khan's progressive calls for new antitrust laws and broader legal thinking about what kinds of business actions could be illegal.

"It seems to me that our laws could meet the need if only enforcers brought the appropriate facts and the appropriate evidence," said Lee, the top Republican on the antitrust panel.

The 'hipster antitrust' movement

Groups such as the Open Markets Institute, where Khan was previously legal director, are looking to boost antitrust enforcement, especially in merger cases. They also want to roll back some court precedents they believe have made antitrust enforcement too narrow and expand competition law beyond a focus on the prices consumers pay to include measures such as product quality, firm conduct and effect on suppliers.

The emphasis on consumer pricing has been the key metric antitrust enforcers have used since the late 1970s, following work by conservative Robert Bork. Many tech critics, though, have said this approach, known as the consumer welfare standard, is insufficient for today's tech companies — Facebook, Google and other tech firms, after all, technically don't charge their users anything, and instead make their massive profits from advertising.

"In my academic capacity, I have critiqued the consumer welfare standard," Khan told Lee. "I've questioned whether it really is a good proxy for competitiveness especially in the context of digital markets."

Lee responded that innovation, product quality and consumer choice are also dimensions of the consumer welfare standard. He has previously said Khan, 32, is too inexperienced for the job and that "her views on antitrust enforcement are also wildly out of step with a prudent approach to the law." Lee's colleague, Sen. Marsha Blackburn, also said she had concerns about Khan's experience and background.

Lee also asked whether Khan's previous work on a House subcommittee might require recusal from cases involving Big Tech companies. Khan helped author the House Antitrust Committee's blockbuster report into Facebook, Google, Apple and Amazon, which concluded that the legal status quo allowed the companies to dominate much of the online economy and urged several reforms.

Khan said that she had none of the financial or personal connections that generally prompt recusal under ethics laws, and said that she would work with agency ethics officials on how to handle specific cases.

Khan spent much of her time assuring lawmakers that, if confirmed, she would urge the FTC to be a stronger, quicker enforcer of the law against tech than agencies have recently been.

"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," Khan said. "At the very least, ensuring that the agencies are doing everything they can to keep pace is going to be important."

Democrats control the Senate and the Commerce Committee, although the panel has an equal number of members from both sides. If the committee advances her nomination, she would need approval from the full Senate to join the FTC.

Fintech

Judge Zia Faruqui is trying to teach you crypto, one ‘SNL’ reference at a time

His decisions on major cryptocurrency cases have quoted "The Big Lebowski," "SNL," and "Dr. Strangelove." That’s because he wants you — yes, you — to read them.

The ways Zia Faruqui (right) has weighed on cases that have come before him can give lawyers clues as to what legal frameworks will pass muster.

Photo: Carolyn Van Houten/The Washington Post via Getty Images

“Cryptocurrency and related software analytics tools are ‘The wave of the future, Dude. One hundred percent electronic.’”

That’s not a quote from "The Big Lebowski" — at least, not directly. It’s a quote from a Washington, D.C., district court memorandum opinion on the role cryptocurrency analytics tools can play in government investigations. The author is Magistrate Judge Zia Faruqui.

Keep Reading Show less
Veronica Irwin

Veronica Irwin (@vronirwin) is a San Francisco-based reporter at Protocol covering fintech. Previously she was at the San Francisco Examiner, covering tech from a hyper-local angle. Before that, her byline was featured in SF Weekly, The Nation, Techworker, Ms. Magazine and The Frisc.

The financial technology transformation is driving competition, creating consumer choice, and shaping the future of finance. Hear from seven fintech leaders who are reshaping the future of finance, and join the inaugural Financial Technology Association Fintech Summit to learn more.

Keep Reading Show less
FTA
The Financial Technology Association (FTA) represents industry leaders shaping the future of finance. We champion the power of technology-centered financial services and advocate for the modernization of financial regulation to support inclusion and responsible innovation.
Enterprise

AWS CEO: The cloud isn’t just about technology

As AWS preps for its annual re:Invent conference, Adam Selipsky talks product strategy, support for hybrid environments, and the value of the cloud in uncertain economic times.

Photo: Noah Berger/Getty Images for Amazon Web Services

AWS is gearing up for re:Invent, its annual cloud computing conference where announcements this year are expected to focus on its end-to-end data strategy and delivering new industry-specific services.

It will be the second re:Invent with CEO Adam Selipsky as leader of the industry’s largest cloud provider after his return last year to AWS from data visualization company Tableau Software.

Keep Reading Show less
Donna Goodison

Donna Goodison (@dgoodison) is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. Based in Massachusetts, she also has worked as a Boston Globe freelancer, business reporter at the Boston Business Journal and real estate reporter at Banker & Tradesman after toiling at weekly newspapers.

Image: Protocol

We launched Protocol in February 2020 to cover the evolving power center of tech. It is with deep sadness that just under three years later, we are winding down the publication.

As of today, we will not publish any more stories. All of our newsletters, apart from our flagship, Source Code, will no longer be sent. Source Code will be published and sent for the next few weeks, but it will also close down in December.

Keep Reading Show less
Bennett Richardson

Bennett Richardson ( @bennettrich) is the president of Protocol. Prior to joining Protocol in 2019, Bennett was executive director of global strategic partnerships at POLITICO, where he led strategic growth efforts including POLITICO's European expansion in Brussels and POLITICO's creative agency POLITICO Focus during his six years with the company. Prior to POLITICO, Bennett was co-founder and CMO of Hinge, the mobile dating company recently acquired by Match Group. Bennett began his career in digital and social brand marketing working with major brands across tech, energy, and health care at leading marketing and communications agencies including Edelman and GMMB. Bennett is originally from Portland, Maine, and received his bachelor's degree from Colgate University.

Enterprise

Why large enterprises struggle to find suitable platforms for MLops

As companies expand their use of AI beyond running just a few machine learning models, and as larger enterprises go from deploying hundreds of models to thousands and even millions of models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

As companies expand their use of AI beyond running just a few machine learning models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

Photo: artpartner-images via Getty Images

On any given day, Lily AI runs hundreds of machine learning models using computer vision and natural language processing that are customized for its retail and ecommerce clients to make website product recommendations, forecast demand, and plan merchandising. But this spring when the company was in the market for a machine learning operations platform to manage its expanding model roster, it wasn’t easy to find a suitable off-the-shelf system that could handle such a large number of models in deployment while also meeting other criteria.

Some MLops platforms are not well-suited for maintaining even more than 10 machine learning models when it comes to keeping track of data, navigating their user interfaces, or reporting capabilities, Matthew Nokleby, machine learning manager for Lily AI’s product intelligence team, told Protocol earlier this year. “The duct tape starts to show,” he said.

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
Bulletins