A MoFo Privacy Minute Q&A (24 June 2021)

This is A MoFo Privacy Minute, where we will answer the questions our clients are asking us in sixty seconds or less.

Question: Who is Lina Khan, and what is the likely impact of her appointment as chair of the Federal Trade Commission?

Answer: The FTC has a new leader at its helm, 32-year-old Lina Khan, the youngest chair in FTC history, an academic with strong anti-monopoly views, and a policymaker critical of Big Tech’s privacy practices.

The Senate confirmed President Biden’s nomination of Khan as an FTC commissioner on June 15, 2021, and, later that day, President Biden picked her to head the agency. As chair, Khan will lead more than 1,000 investigators, economists, and lawyers tasked with investigating and regulating both antitrust violations and unfair or deceptive trade practices.

Khan may be best known for an influential 2017 Yale Law Review article in which she disrupted decades of well-settled antitrust theory by arguing that certain monopolies can harm U.S. consumers and democracy, even when they appear to benefit their customers—such as by offering low prices. She is a former Columbia Law School professor who recently worked as counsel on an investigation of big tech companies by the House Judiciary Committee’s antitrust subcommittee. The subcommittee published a report that criticized tech giants for, among other things, allegedly eroding privacy and consumer choice. The report’s recommendations included breaking up the companies and a presumption in favor of blocking future mergers and acquisitions by the dominant platforms.

Although Khan will have more power than an individual commissioner, in order to create new rules or pursue major enforcement actions, she will need the support of at least two of the four other commissioners. Further, significant changes to how the FTC has historically enforced existing laws would likely lead to legal challenges, which may eventually wind their way to a conservative Supreme Court. What she can more readily do, however, is make staffing changes to better align agency investigators, lawyers, and economists with her view of online privacy and the role of data in antitrust law. Particularly important will be to see who she chooses as bureau chiefs, the agency staff with decision-making authority over matters to investigate and pursue.

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