Khan first emerged on the antitrust scene as a 28-year-old Yale law student, with her searing 24,000-word article on why U.S. antitrust law isn’t equipped to deal with tech giants such as Amazon and their modern version of power.
(Amazon CEO Jeff Bezos owns The Washington Post.)
Khan is the latest Big Tech critic that the Biden administration has tapped to join the administration, setting up a likely hard-line stance against the powerful industry. Tim Wu, who has been critical of the industry, will work on competition and technology policy on the National Economic Council, and Vanita Gupta, who has advocated for civil rights change in Big Tech, faced Congress on Tuesday for a role as associate attorney general at the Justice Department.
Biden’s nomination of Khan is also notable because Jay Carney, who was previously Biden’s vice presidential communications director, and then the press secretary for President Barack Obama, is Amazon’s senior vice president of global corporate affairs.
In her 2017 paper, Khan presented a way to look at antitrust that went beyond examining just near-term effects on consumer pricing, which has been a cornerstone of American antitrust policy interpretation for decades. She showed how Amazon was controlling competitors at little cost to itself — seemingly benefiting consumers in the near term, but also causing far-reaching ripples through the rest of the industry.
“The current market is not always a good indication of competitive harm,” Khan told The Post in 2017. “They have to ask what the future market will look like.”
The White House and Khan did not respond to requests for comment. The news of Khan’s nomination was first reported by Politico.
Khan has had a meteoric rise from a law student with an antitrust paper that essentially went viral — no small feat with scholarly work — to now serving as an associate professor at Columbia Law School, focusing on antitrust law and anti-monopoly tradition, according to her bio. She previously worked as a legal adviser to FTC Commissioner Rohit Chopra and worked with Rep. David N. Cicilline (D-R.I.) as counsel for the House Judiciary antitrust subcommittee. There, she helped lead the House investigation into anti-competitive behavior from Amazon, Apple, Facebook and Google.
The panel’s report, released in October, found that the tech giants relied on harmful means to rise to and solidify their dominance in their respective niches.
Khan’s theories are also sometimes controversial within the antitrust scholarly community, though many scholars have heralded them as the start of a new wave of thinking.
The Information Technology and Innovation Foundation, a nonpartisan organization that receives funding from many tech giants including Google, Apple, Facebook and Amazon, said Tuesday that Khan’s theories will harm U.S. companies and referred to them as “hipster antitrust,” a term critics have used for years to describe Khan’s work.
“Khan’s antitrust populism threatens to derail traditional enforcement of antitrust laws as an engine for enhancing consumer benefits and spurring innovation,” the organization’s director of antitrust and innovation policy, Aurelien Portuese, said in a statement.
Powerful tech companies have come under increased governmental scrutiny in recent years. The CEOs of Google, Amazon, Facebook and Apple were grilled by Congress over their far-reaching market power last summer. The Justice Department sued Google alleging multiple violations of antitrust law in October, and the FTC and dozens of state attorneys general filed antitrust suits against Facebook in December.
The chief executives of Facebook, Google and Twitter are expected to appear before Congress again later this month.
Public Citizen, an organization that advocates against corporate power, praised the decision to appoint Khan in a statement, calling it “a hopeful sign that the Biden administration intends to take a more aggressive approach to antitrust enforcement.”
Jeffrey Chester, executive director of the Center for Digital Democracy, an organization that often advocates for tech regulations, said Khan could make the FTC relevant again after decades of the agency falling behind on antitrust issues.
“This is a vital nomination that can help bring the FTC back from the morass it has created for decades,” he said in an email.
Tony Romm contributed to this report.