OPINION:
President Biden picked Lina Khan to head the Federal Trade Commission because she was allegedly some kind of regulatory savant, able to spot emerging industries in desperate need of so-called experts telling them how to do business.
Her tenure hasn’t exactly been a plus for the marketplace — or her agency. The people who work there say she’s poisoned the workplace environment and sabotaged its mission because of her reckless disregard for precedent.
Some of her fellow commissioners aren’t any happier. One of them, Commissioner Christine Wilson, took the unusual step the other day of publicizing her dissent from the commission’s conclusion that Ms. Khan need not recuse herself from participating in the consideration of Meta’s proposed acquisition of Within Unlimited, a virtual reality platform.
Allowing Ms. Khan to preside oversee the question, Ms. Wilson wrote, “would violate both due process principles and federal ethics standards.”
Not that it matters much. On Tuesday, U.S. District Judge Edward Davila denied the FTC’s effort to block META from purchasing Within, saying the government failed to prove that the deal was anti-competitive.
For the moment, the deal is still stuck because the FTC can appeal. The commissioners will decide what they’ll do in an in-house meeting scheduled for next week. Ms. Khan, who will participate in the process, could still put her thumb on the scale, but the courts usually get the last word in matters like this.
Nonetheless, Ms. Khan acts like a steamroller that cannot be stopped, trying to flatten the tech community wherever and whenever she can for reasons that cannot be explained.
In another action related to tech, the FTC filed suit last August against Kochava, an Idaho-based tech company that the agency claimed was selling sensitive geolocation data that was being misused for political purposes.
According to the agency, which hasn’t helped matters by its failure to define what it means by “sensitive locations,” the company has the potential to sell geolocation data to political operators around the country who use the data to market products and candidates and address political issues to people who have been shown to have visited Planned Parenthood facilities, houses of worship, medical dispensaries and the like.
Even if these claims are factual, none of that is illegal. Still, Ms. Khan, as she has done many times before, does not shy away from a chance to expand the federal government’s ability to reach into the marketplace and control it. What makes this case a bit strange is that it’s been the Democrats who have made the best use of this kind of information.
Geolocation data tied to target marketing efforts helped turn the tide for the party in purple states from Pennsylvania to Arizona in the last election, keeping the Senate in Democratic hands and making the GOP majority in the House a lot smaller than predicted. Talk about biting the hand that feeds you.
In a recent interview, Ms. Khan discussed the issue of geolocation, which is quickly becoming a multibillion-dollar U.S. business, in terms of the limits that needed to be set. “There are certain types of data collected and sold,” she said, that need to be made “unlawful.”
The FTC has clearly stated that it plans to set precedents on data issues not already defined by Congress or the courts, regardless of the users’ interests. That might be true, but that’s something for Congress to decide. Unlike the alphabet soup of regulatory agencies that are ubiquitous in the nation’s capital, legislators must consider a broader range of interests than federal regulators do.
Ms. Khan has support for this on the commission. Her colleague Alvaro Bedoya has said in at least one interview that he was eager to support the FTC’s action against Kochava, hinting that the company has been singled out among the many that have sprung up in the geolocation data industry for a specific but unspecified reason.
They make it sound like it’s the FTC’s job to set policy, make law, and pick winners and losers among the firms in an emerging high-tech industry. It isn’t. If Ms. Khan and her colleagues think there ought to be a national tech policy, they need to go to Congress and ask for it or get Mr. Biden to propose one. They can’t do it through the back door through the expansion of the agency’s regulatory authority. If she’s not willing to do any of this, it’s up to Congress to rein her in through the oversight process before she does any more damage in other emerging U.S. fields. If further regulation and legislation are needed, and it’s not clear that it is, Congress can and will provide the marching orders.
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