Although Khan, 33, climbed to the top ranks of competition law in his criticism of Amazon, he appears to be preparing privacy rules, changing the agency’s views on mergers, more work on data children and the defense agency then. hostile judges – though many of those outside the FTC who may face its wrath are making their own preparations.
“The FTC follows and governs the entire economy, basically,” said Matt Wood, vice president of Policy at media group Free Press. “When it comes to signature issues, a lot of things are still being done.”
The Free Press is one of dozens of consumer groups urging Khan and the FTC to use the agency’s power to regulate “unfair or fraudulent acts” so that it can protect the privacy of Americans ’data. , especially against discriminatory uses of digital information.
It was an action he had long urged he wanted to take, but Woods said, to support those and other consumer -focused efforts, outside groups are trying to strengthen Khan’s work to re imagine FTC processes and use long -dormant power.
“Whether it’s people within the agency, or the advocacy community, or some combination of all of the above, we want to do more,” Wood said. “How do we do it? How do we polish, and in some cases even dust off, Federal Trade Commission tools that have rarely been used for decades? ”
Congress requires that a potential privacy rule enactment, for example, would take more time and labor than most agencies ’regulatory efforts – a condition that helped ensure that the FTC rarely tried to issue such rules in recent years. So last year, with the support of the other two Democratic commissioners, Khan made internal changes that would somewhat speed up the effort. Since then, outside groups have filed petitions to open up rule -making, along with legal theories about what shapes a rule.
They had to wait. One of the Democratic commissioners who served when Khan took over, Rohit Chopra, left immediately afterwards to become director of the CFPB. As a result, until last month, Khan faced a 2–2 partisan split that prevented him from addressing potentially controversial issues, including rule -making.
He finally appears ready to move forward, though. Khan told Protocol last week, for example, that he was thinking about the behavioral ad marketplace, which “creates a certain set of incentives that aren’t always consistent with people’s privacy protections.” He also hinted at the value of limiting certain types of data collection and prohibiting discriminatory data use – as expected by the Free Press and others.
Such immense regulation will almost certainly provoke fury, lawsuits and calls in Congress to restrain an agency already faced with an uncertain political future. But in many ways, that’s just a continuation of his tenure so far.
Making enemies
Khan made a name for himself in law school, quickly becoming the best -known representative of a loose philosophy of reform sometimes dubbed “hipster antitrust.” These so -called antitrust hipsters believe that contemporary competition enforcers have become too comfortable with aggregation, too limited in measuring economic damage and too willing to forget that Big Tech companies – no matter how low their prices – are earning billions as the gatekeepers of the digital marketplace. . Khan and others cited Amazon as the prime example of their concerns.
After Khan served as a staff member for Chopra and as an attorney in the House’s landmark investigation into the tech giants ’competition practices, President Biden appointed him to serve as a commissioner at the FTC. He won bipartisan support in the Senate, where some Republicans view antitrust enforcement as a way to punish Big Tech. But many on the right were disappointed when Biden, in a surprise move, appointed him chair of the agency immediately after he was sworn in.
In his early weeks, he led a series of internal changes, hoping to speed up rule -making and investigations and slow mergers. Chopra also cast a few votes on certain matters before he left, allowing Khan to briefly extend the Democratic majority while he awaits confirmation of Chopra’s replacement – a practice ridiculed by opponents as zombie voting. Some of the commission’s decisions at the time were played out in the open meetings he initiated, allowing the public to have an unprecedented ability to communicate with commissioners. But consumers can also witness as the two Republicans complain that the new seat has silenced dissent, removes procedural protections and commits a power grab that will hurt the U.S. economy.
In April, for example, Republican commissioner Christine Wilson suggested that Khan was an intellectual disciple of Karl Marx, and that big business was almost as critical.
“The FTC’s continued lack of transparency and disregard for due process shows that it should not be entrusted to write policies for the U.S. economy,” said Jordan Crenshaw, vice president of the Technology Engagement Center at the U.S. Chamber. of Commerce. “Legitimate businesses deserve due process from an agency with broad and broad authority – an authority that can be abused without the right people governing and procedures in place.”
The House, a powerful business lobbying group, has threatened “war” and extensive litigation over Khan’s actions, and it has broken the potential of making the rule on targeted digital advertising particularly bad for to consumers and potentially without a legal foundation.
Under Khan, the FTC also suffered falling employee satisfaction and lost key personnel.
However, it’s hard to say that his tenure hasn’t been influential for technology. Last year, the FTC moved to break hardware repair restrictions (which resulted in Apple and Samsung making concessions to the “right to repair” movement), boosting enforcement in dark patterns and technology. -education, began stopping influencer campaigns that violated advertising rules, recovered the agency’s antitrust case against Meta, helped push Nvidia to abandon its planned purchase of Arm and fined Twitter for its use of phone numbers in ad targeting.
The FTC also took over the investigation into Microsoft’s acquisition of Activision Blizzard and, likely because the agency was already investigating Amazon even before Khan’s tenure, the company’s purchase of MGM.
That final deal went ahead, but a showdown between Khan and Amazon, his long -time target, could begin soon, now that the FTC once again has a Democratic majority with Alvaro Bedoya’s confirmation as the fifth commissioner in May.
Offense and defense
In the meantime, many tech companies that aren’t Seattle-based mega-retailers could also see the FTC looking at issues that will greatly affect them. A key area, which can be bipartisan, is children’s privacy, says Josh Golin, executive director of kids ’media advocacy group Fairplay.
“Based on the talks with the commission and the things we’ve heard … I think they’re serious about enforcing against the bigger players that will push for changes across the industry,” Golin said.
He added that he expects to work on several things, such as regulations around children and ads – an ambition that he said requires his organization to seek out the latest academic research, examine children’s current digital habits. and fix other child advocates who may ignore the FTC.
The process of mobilizing public input through comments, forums and newly open meetings appears to be focusing the agency on new issues. Khan and his counterparts in the Justice Department Antitrust Division, for example, invited workers to talk about their aggregation experiences, including in tech. The sessions are part of an effort to revisit the guidelines that tell businesses what types of deals are of most concern to executors, which are some of the most thoroughly reviewed documents from the agency. Although the inclusion of workers ’concerns in the overhaul has been controversial, Khan told the Protocol their stories about wage cuts and the shaky schedules have proven particularly fascinating to him.
Khan also has a long list of issues he wants to tackle outside of technology, including the healthcare and pharmacy sectors, and his allies in congress have begun to articulate their own tech priorities more broadly.
“Now that the FTC has a fifth commissioner, I am confident they are moving aggressively,” Rep. Jan Schakowsky, who oversees the House consumer protection panel, told the Protocol in a statement. Schakowsky said he wants to see action on “Big Tech accountability and data protection, franchise issues and the gig economy, and online revenue, shopping, and crypto scams, among other things.”
The range of issues is very high, in fact, some, including Golin, admit that they don’t think Khan will have the time to address all the things they expect.
In addition, Khan will need to balance all of these requests with looming threats to the FTC itself.
Last year, for example, the Supreme Court removed one of the FTC’s most important tools when it unanimously ruled that the agency had spent many years underscoring the ability to quickly obtain money for victims of scams and others. more misconduct in business. Congress, once divided by partisanship, has made little progress in restoring authority. Now the high court is taking a case that will likely allow defendants within the FTC court to force the agency to justify its approach in a full-fledged federal court, former FTC general counsel said. Stephen Calkins. At the same time, courts across the U.S. are increasingly focusing on the FTC structure.
Calkins said that – as Khan fights, the business community and consumers on his wish list – the FTC is also guarding its shoulder for threats coming from the courts and evil lawmakers.
“The FTC faces unprecedented challenges in the next year or two,” Calkins said. “We really haven’t had a time like this, when the very existence of the FTC that we know is in jeopardy.”
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