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Lina Khan’s timely tech skepticism makes for a refreshingly friendly FTC confirmation hearing

One never knows how a confirmation hearing will go these days, especially one for a young outsider nominated to an important position despite challenging the status quo and big business. Lina Khan, just such a person up for the position of FTC Commissioner, had a surprisingly pleasant time of it during today’s Senate Commerce Committee confirmation hearing — possibly because her iconoclastic approach to antitrust makes for good politics these days.

Khan, an associate professor of law at Columbia, is best known in the tech community for her incisive essay “Amazon Antitrust’s Paradox,” which laid out the failings of regulatory doctrine that have allowed the retail giant to progressively dominate more and more markets. (She also recently contributed to a House report on tech policy.)

When it was published, in 2018, the feeling that Amazon had begun to abuse its position was, though commonplace in some circles, not really popular in the Capitol. But the growing sense that laissez-faire or insufficient regulations have created monsters in Amazon, Google, and Facebook (to start) has led to a rare bipartisan agreement that we must find some way, any way will do, of putting these upstart corporations back in their place.

This in turn led to a sense of shared purpose and camaraderie in the confirmation hearing, which was a triple header: Khan joined Bill Nelson, nominated to lead NASA, and Leslie Kiernan, who would join the Commerce Department as General Counsel, for a really nice little three-hour chat.

Khan is one of several in the Biden administration who signal a new approach to taking on Big Tech and other businesses that have gotten out of hand, and the questions posed to her by Senators from both sides of the aisle seemed genuine and got genuinely satisfactory answers from a confident Khan.

She deftly avoided a few attempts to bait her — including one involving Section 230; wrong Commission, Senator — and her answers primarily reaffirmed her professional opinion that the FTC should be better informed and more preemptive in its approach to regulating these secretive, powerful corporations.

Here are a few snippets representative of the questioning and indicative of her positions on a few major issues (answers lightly edited for clarity):

On the FTC getting involved in the fight between Google, Facebook, and news providers:

“Everything needs to be on the table. Obviously local journalism is in crisis, and i think the current COVID moment has really underscored the deep democratic emergency that is resulting when we don’t have reliable sources of local news.”

She also cited the increasing concentration of ad markets and the arbitrary nature of, for example, algorithm changes that can have wide-ranging effects on entire industries.

Lina Khan, commissioner of the Federal Trade Commission (FTC) nominee for U.S. President Joe Biden, speaks during a Senate Commerce, Science and Transportation Committee confirmation hearing in Washington, D.C.

Image Credits: Graeme Jennings/Washington Examiner/Bloomberg / Getty Images

On Clarence Thomas’s troubling suggestion that social media companies should be considered “common carriers”:

“I think it prompted a lot of interesting discussion,” she said, very diplomatically. “In the Amazon article, I identified two potential pathways forward when thinking about these dominant digital platforms. One is enforcing competition laws and ensuring that these markets are competitive.” (i.e. using antitrust rules)

“The other is, if we instead recognize that perhaps there are certain economies of scale, network externalities that will lead these markets to stay dominated by a very few number of companies, then we need to apply a different set of rules. We have a long legal tradition of thinking about what types of checks can be applied when there’s a lot of concentration and common carriage is one of those tools.”

“I should clarify that some of these firms are now integrated in so many markets that you may reach for a different set of tools depending on which specific market you’re looking at.”

 

(This was a very polite way of saying common carriage and existing antitrust rules are totally unsuitable for the job.)

On potentially reviewing past mergers the FTC approved:

“The resources of the commission have not really kept pace with the increasing size of the economy, as well as the increasing size and complexity of the deals the commission is reviewing.”

“There was an assumption that digital markets in particular are fast moving so we don’t need to be concerned about potential concentration in the markets, because any exercise of power will get disciplined by entry and new competition. Now of course we know that in the markets you actually have significant network externalities in ways that make them more sticky. In hindsight there’s a growing sense that those merger reviews were a missed opportunity.”

(Here Senator Blackburn (R-TN) in one of the few negative moments fretted about Khan’s “lack of experience in coming to that position” before asking about a spectrum plan — wrong Commission, Senator.)

On the difficulty of enforcing something like an order against Facebook:

“One of the challenges is the deep information asymmetry that exists between some of these firms and enforcers and regulators. I think it’s clear that in some instances the agencies have been a little slow to catch up to the underlying business realities and the empirical realities of how these markets work. So at the very least ensuring the agencies are doing everything they can to keep pace is gonna be important.”

“In social media we have these black box algorithms, proprietary algorithms that can sometimes make it difficult to know what’s really going on. The FTC needs to be using its information gathering capacities to mitigate some of these gaps.”

On extending protections for children and other vulnerable groups online:

Some of these dangers are heightened given some of the ways in which the pandemic has rendered families and children especially dependent on some of these [education] technologies. So I think we need to be especially vigilant here. The previous rules should be the floor, not the ceiling.


Overall there was little partisan bickering and a lot of feeling from both sides that Khan was, if not technically experienced at the job (not rare with a coveted position like FTC Commissioner), about as competent a nominee as anyone could ask for. Not only that but her highly considered and fairly assertive positions on matters of antitrust and competition could help put Amazon and Google, already in the regulatory doghouse, on the defensive for once.

Why Biden’s likely FTC pick is bad news for Big Tech

Why Biden's likely FTC pick is bad news for Big Tech

In a bad sign for Big Tech, President Joe Biden is reportedly nominating Columbia Law School professor Lina Khan to the Federal Trade Commission, Politico reported Tuesday

At 32, she would be the youngest FTC commissioner ever.

“As consumers, as users, we love these tech companies,” Khan told the New York Times in 2018. “But as citizens, as workers, and as entrepreneurs, we recognize that their power is troubling. We need a new framework, a new vocabulary for how to assess and address their dominance.”

Khan hasn’t been officially announced, and she would have to make it through a Senate confirmation before becoming one of five commissioners at the FTC. Read more…

More about Tech, Ftc, Big Tech Companies, Big Tech, and Tech

Flo gets FTC slap for sharing user data when it promised privacy

The FTC has reached a settlement with Flo, a period- and fertility tracking app with 100M+ users, over allegations it shared users’ health data with third party app analytics and marketing services like Facebook despite promising to keep users’ sensitive health data private.

Flo must obtain an independent review of its privacy practices and obtain app users’ consent before sharing their health information, under the terms of the proposed settlement.

The action follows a 2019 reports in the Wall Street Journal which conducted an analysis of a number of apps’ data sharing activity.

It found the fertility tracking app had informed Facebook of in-app activity — such as when a user was having their period or had informed it of an intention to get pregnant despite. It did not find any way for Flo users to prevent their health information from being sent to Facebook.

In the announcement of a proposed settlement today, the FTC said press coverage of Flo sharing users data with third party app analytics and marketing firms including Facebook and Google had led to hundreds of complaints.

The app only stopped leaking users’ health data following the negative press coverage, it added.

Under the FTC settlement terms, Flo is prohibited from misrepresenting the purposes for which it (or entities to whom it discloses data) collect, maintain, use, or disclose the data; how much consumers can control these data uses; its compliance with any privacy, security, or compliance program; and how it collects, maintains, uses, discloses, deletes, or protects users’ personal information. 

Flo must also notify affected users about the disclosure of their personal information and instruct any third party that received users’ health information to destroy that data.

The app maker has been contacted for comment.

No financial penalty is being levied but the FTC’s proposed settlement is noteworthy as it’s the first time the US regulator has ordered notice of a privacy action.

“Apps that collect, use, and share sensitive health information can provide valuable services but consumers need to be able to trust these apps. We are looking closely at whether developers of health apps are keeping their promises and handling sensitive health information responsibly,” said Andrew Smith, director of the FTC’s Bureau of Consumer Protection, in a statement.

While the settlement received unanimous backing from five commissioners, two — Rohit Chopra and Rebecca Kelly Slaughter — have issued a joint dissent statement in which they highlight the lack of a finding of a breach of a US’ health breach notification rule which they argue should have applied in this case.

“In our view, the FTC should have charged Flo with violating the Health Breach Notification Rule. Under the rule, Flo was obligated to notify its users after it allegedly shared their health information with Facebook, Google, and others without their authorization. Flo did not do so, making the company liable under the rule,” they write.

“The Health Breach Notification Rule was first issued more than a decade ago, but the explosion in connected health apps make its requirements more important than ever. While we would prefer to see substantive limits on firms’ ability to collect and monetize our personal information, the rule at least ensures that services like Flo need to come clean when they experience privacy or security breaches. Over time, this may induce firms to take greater care in collecting and monetizing our most sensitive information,” they add.

Flo is by no means the only period tracking app to have attracted attention for leaking user data in recent years.

A report last year by the Norwegian Consumer Council found fertility/period tracker apps Clue and MyDays unexpectedly sharing data with adtech giants Facebook and Google, for example.

That report also found similarly non-transparent data leaking going on across a range of apps, including dating, religious, make-up and kids apps — suggesting widespread breaches of regional data processing laws which require that for consent to be valid users must be properly informed and given a genuine free choice. Although app makers have so far faced little enforcement for analytics/marketing-related data leaking in the region.

In the US regulatory action around apps hinges on misleading claims — whether about privacy (in Flo’s case) or in relation to the purposes of data processing, as in a separate settlement the FTC put out earlier this week related to cloud storage app Ever.