Will Joe Biden and Lina Khan Cut the Tech Giants Down to Size?

Of all the appointments that Joe Biden has made since becoming President, one of the most intriguing came last week, when he named Lina Khan, a thirty-two-year-old associate professor at Columbia Law School, as chair of the Federal Trade Commission, an agency with broad authority to police America’s biggest corporations, including its tech giants. After two decades in which both Democrats and Republicans have mostly taken a light-handed approach to regulating Silicon Valley, Khan’s appointment raises the prospect of a long-overdue drive to reinvigorate the enforcement of antitrust laws and inject more competition into a vital part of the economy that is dominated by a handful of gargantuan incumbents.

Biden elevated Khan immediately after the Senate voted to confirm her as one of the five commissioners who serve on the F.T.C. Despite her relative youth, she is a leading figure in the movement to crack down on abusive monopolies, particularly those in the tech sector, and other antitrust campaigners greeted her promotion with surprise and delight. “If you had asked me six or eight months ago if we could get someone like Lina Khan onto the F.T.C., I would have said, ‘Maybe,’ ” Matt Stoller, the author of the book “Goliath: The 100-Year War Between Monopoly Power and Democracy,” from 2019, told me. “If you had asked me if we could get someone like Lina Khan to be chair of the F.T.C., I would likely have said, ‘Are you totally crazy?’ ”

The daughter of Pakistani immigrants to the United States, Khan first came to public attention in 2017, when, as a student at Yale Law School, she published a lengthy article in the Yale Law Journal which argued that Amazon shouldn’t be excluded from antitrust scrutiny simply because it had a history of cutting prices. To the many retail businesses that have been decimated by Jeff Bezos’s juggernaut, Khan was merely stating the obvious. But her article represented a challenge to the policy orthodoxy that has dominated the world of antitrust law for decades. Originating in the Chicago School of economics and promulgated by conservative jurists such as Robert Bork, this approach emphasizes “consumer welfare,” which judges have interpreted to mean that anticompetitive practices can be justified if they lead to lower prices. Because Amazon charges lower prices than many offline retailers, and because other tech giants, such as Google and Facebook, provide online services for free, they have been largely immune from antitrust enforcement, despite their market dominance. Even as many of the tech giants’ competitors accused them of bullying tactics, such as “predatory pricing”—charging low prices for a time to drive rivals out of business—the U.S regulatory authorities and courts largely discounted these claims. (European regulators have been far tougher on Silicon Valley.)

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