When President Joe Biden chose Lina Khan for one of the Federal Trade Commission’s five seats, it was an ominous sign for the nation’s largest technology companies. While still a law student, Khan made her academic career penning “Amazon’s Antitrust Paradox,” a scholarly 2017 treatise arguing for a tougher approach to regulating the Seattle behemoth.
Prior to law school, Khan worked for Barry Lynn, a scholar who was fired from the centrist New America Foundation over his aggressive criticism of Google, a major New America funder. After law school, Khan worked as the legal director of Lynn’s new organization, the Open Markets Institute.
So if we can expect anyone to push the Federal Trade Commission to enforce antitrust laws more aggressively against big technology companies, it would be Khan. The choice of Khan could also signal that the Biden administration more broadly will take a confrontational posture toward Big Tech.
But the really ominous sign for Big Tech is what happened when Khan had her confirmation hearing before the Senate Commerce Committee on Wednesday.
“I’ve become increasingly concerned”
You might have expected Republicans on the committee to go on the attack against Khan. Senators are usually happy to criticize nominees from the opposite party. And for most of the last 50 years, Republicans tended to favor a hands-off approach to antitrust law.
But only one Republican at Wednesday’s hearing raised any significant objections to the Khan pick—and her concerns weren’t about antitrust policy. Sen. Marsha Blackburn (R-Tenn.) said she worried about Khan’s “background and lack of experience” for such a senior position—Khan is in her early 30s.
Other Republicans seemed downright enthusiastic about Khan’s adversarial stance toward big technology companies and urged Khan to wield the FTC’s regulatory powers aggressively.
“I believe the FTC should be doing much more to rein in the anticompetitive abuses of Big Tech,” Sen. Ted Cruz (R-Texas) said to Khan.
Sen. Roger Wicker (R-Miss.) asked Khan about the portion of “Amazon’s Antitrust Paradox” that discusses treating Amazon as a common carrier. He also approvingly cited a recent concurring opinion by Justice Clarence Thomas suggesting that the law could treat social media giants as common carriers.
“I’ve become increasingly concerned about social media companies that promise to be a free and open marketplace for ideas, but they’re not in my view upholding those promise to their consumers,” said Sen. Jerry Moran (R-Kan.). Moran has introduced legislation allowing the FTC to punish social media companies if they don’t follow their own social media policies.
Democrats were equally critical of big tech companies, though they tended to focus on different issues. Sen. Amy Klobuchar (D-Minn.) blasted Google and Facebook for trying to “hold a whole country hostage” during the recent dispute over Australia’s news industry. Klobuchar also blasted Apple for its App Store policies.
The right is learning to love antitrust—at least for Silicon Valley
It would be misleading to suggest that there’s a left–right consensus on the best approach to regulating big technology companies. Republicans’ rising antipathy toward big technology companies is partly a reaction to social media companies’ increasingly aggressive moderation of right-wing content—including several sites banning Donald Trump back in January. Those moderation efforts are obviously popular among Democrats, so we can expect Democratic leaders to block legislative proposals like Moran’s.
But Republicans’ concerns are broader than just the moderation issue. For example, when the Trump administration filed major antitrust lawsuits against Google and Facebook late last year, the case was supported by the attorney general of almost every state, Democrat and Republican. And those lawsuits weren’t focused on content moderation issues. Rather, they focused on traditional antitrust concerns that have long been held by left-leaning legal scholars like Khan.
The tech giants’ best hope of beating back this populist wave rests with the judiciary. Antitrust law is based on a small set of vague century-old statutes that have been interpreted over time by a long sequence of court rulings. Starting in the 1980s, judges became more skeptical of strict antitrust enforcement. Over the last four decades, the Supreme Court handed down a series of rulings that weakened antitrust enforcement. Last year, for example, a federal appeals court rejected the FTC’s case that Qualcomm had abused its monopoly power in the modem chip market.
Antitrust law isn’t as ideologically polarized as some areas of the law, but it’s traditionally had some partisan tilt. Liberal judges usually favoring stricter interpretations of the law than conservatives. For example, in one landmark 2018 ruling, the Supreme Court’s five conservative justices all voted to uphold an appeals court ruling that American Express had not violated antitrust law. The court’s four liberals all signed a dissent by Justice Stephen Breyer arguing that American Express had violated antitrust law.
This matters because Congress has become so polarized and dysfunctional that it’s unlikely to pass an overhaul of antitrust law—even if most members of Congress believe that recent antitrust policy has been too lenient. Hence, as long as the courts—and especially the nine members of the Supreme Court—favor weak enforcement of antitrust law, there may not be much that Khan or other members of the Biden administration can do to rein in big tech companies. It doesn’t matter how many big antitrust lawsuits the FTC or the Justice Department bring if the courts reject them.
At least one conservative justice is worried about Big Tech
And this is why that recent concurrence by Supreme Court Justice Clarence Thomas is so important. The case wasn’t an antitrust case. Rather, it concerned whether Donald Trump violated the First Amendment by blocking users from following him.
But Thomas went out of his way to express alarm about the market dominance of Facebook, Google, and other technology giants. He noted that Google has a 90 percent market share (it’s not clear which market this refers to) and that Facebook has 3 billion users. He warned that such a large market share gives tech giants a lot of control over the public’s communications.
While Justice Thomas didn’t suggest any specific changes to antitrust doctrine, he certainly seemed sympathetic to arguments that the tech giants have been abusing their market share. More generally, this seems like a sign that the changing view of big tech companies among Republican voters and Republican politicians is also affecting at least some conservative members of the judiciary.
It’s impossible to predict how Justice Thomas might rule if the Google or Facebook cases eventually reach the Supreme Court. And with six conservative justices, Thomas might not be a deciding vote even if he sided with the liberals.
But technology giants can’t be happy to face growing hostility across the political spectrum and from all three branches of government. Even if the companies manage to beat back the current wave of antitrust lawsuits, the next Republican president could share Donald Trump’s (and Joe Biden’s) hostility toward big technology companies and their enthusiasm for antitrust activism. And that would mean that sooner or later, the judiciary would turn against them, too.