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How much can Lina Khan do to rein in Big Tech?



New head of US regulator FTC favours working through regulation than having court battles


英国《金融时报》 理查德•沃特斯 报道

As Democrats in Washington made their final preparations for an assault on the power of Big Tech, it looked like a decisive one-two punch.


A week ago, the House of Representatives proposed a clutch of new antitrust laws. This followed public hearings and a damning Congressional report last year that owed much to the behind-the-scenes work of Lina Khan, an academic who has been influential in shaping the response to tech power.

近期,美国众议院提出一系列新反垄断法案。此前国会举行过数次公开听证会,还在去年发布了一份谴责性报告,这在很大程度上要归功于莉娜•汗(Lina Khan)的幕后工作。汗是一名学者,在塑造如何应对科技力量方面很有影响力。

Then, this week, it emerged that Khan will become the next head of the Federal Trade Commission, setting her up as one of Washington’s foremost trustbusters.


The natural questions that follow: will Congress follow through with new legislation? If not, will a Khan FTC go it alone in trying to set new rules to rein in the tech giants? And if it does, how much could it hope to achieve under existing antitrust laws?


The legislative agenda is ambitious. Inevitably, most attention has fallen on a bill to break up the big tech companies.


Forcing a complete restructuring of America’s most conspicuously successful — and still generally popular — industry sounds like a tall order, even in a period less riven by partisan politics. A degree of Republican backing for the House bills has been notable. But getting to a filibuster-proof 60 votes in the Senate will be hard.


A less drastic law would prevent the companies giving unfair preference to their own services. This fits closely with the approach that Khan has advocated through her scholarly work, most notably on Amazon, where she showed a preference for non-discrimination rules of the kind applied to essential utilities.


Yet many see little chance of any of this getting into law. There may be a consensus in Washington about restraining the tech companies, but opinions about legislation to do it are all over the map, making it more likely the Biden administration will go for quick action under the existing laws, according to Nicholas Economides, a New York University economics professor.

然而,许多人认为,任何这些想法成为法律的可能性都微乎其微。纽约大学(New York University)经济学教授尼古拉斯•伊科诺米季斯(Nicholas Economides)表示,在约束科技企业方面,华盛顿也许有共识,但对如何通过立法来做到这一点,看法多种多样,各不相同,这意味着拜登(Biden)政府更可能在现有法律下采取快速行动。

At the FTC, Khan inherits an action against Facebook and investigation into Amazon. But she made it clear she would prefer to work through regulation rather than the courts. Last year, she co-authored a paper in favour of a significant rethink of how the agency wields its powers to prevent “unfair methods of competition”, advocating sweeping, industry-wide rules. The FTC has already taken steps in this direction, creating a new centralised staff group this year to come up with rulemaking proposals.


There are likely to be other influential voices calling for swift action outside Congress. Tim Wu, a Columbia law school professor (like Khan) who was named an adviser to the White House this year, has been influential in arguing that current laws give the trustbusters some powerful weapons, they just need to be enforced more aggressively.

可能会有其他有影响力的人物呼吁在国会之外采取快速行动。今年被任命为白宫顾问、与汗同为哥伦比亚大学法学院教授的吴修铭(Tim Wu)就发表过颇有分量的言论,他认为现行法律为反垄断官员提供了一些很有威力的武器,只是需要更大力地使用这些武器。

Not that unilateral regulatory action would be plain sailing. Moving ahead without the backing of Congress would leave Khan politically exposed. Legal challenges would be inevitable.


Even if the FTC tries to set sweeping new non-discrimination rules for tech platforms, meanwhile, there are serious questions about how effective these could be.


Europe’s efforts on the issue have been underwhelming. These included forcing Microsoft to offer new PC customers a choice of their default internet browser, and requiring Google to prompt Android users to select their preferred search engine. Neither action had any noticeable effect on competition.


How to give internet users real choice on today’s dominant platforms presents huge design challenges. At this stage, it is questionable how many iPhone customers would jump at the chance of using a non-Apple App store, or how many Android users would welcome the choice of a non-Google search engine.


Despite all this, some investors are already looking ahead to an opening up of the platforms that will give a new lease of life to a set of specialised internet services. Since November’s presidential election — and even before Democrats gained narrow control of the Senate — shares in Yelp, the local search company that has been a longtime critic of Google, have more than doubled. Travel company Expedia, another arch-foe of the search company, is up 77 per cent.


Investors in these and many similar companies will be hoping that Khan, after doing much to set the agenda for the Democrats’ assault on Big Tech, can deliver the goods.