


What do you do if you are President Joe Biden’s hand-picked antitrust attack dog but you’ve been repeatedly thwarted by Big Tech and you’re facing scrutiny from your own top ethics officials? If you're Federal Trade Commission Chairwoman Lina Khan , you lock your legal jaws on the next Big Tech company to catch your eye: Amazon.
On Wednesday, the FTC issued a press release announcing that it is pursuing legal action against Amazon for its alleged use of “dark patterns,” user-interface designs intended to manipulate, coerce, or otherwise deceive consumers. In the release, Khan claims that “Amazon tricked and trapped people into recurring subscriptions without their consent, not only frustrating users but also costing them significant money.”
SWEETHEART HUNTER PLEA IS A GIFT TO BIDEN AND TRUMPThis latest assault on Amazon comes on the heels of the FTC’s failed attempt to block Meta from acquiring the virtual reality fitness service Within Limited earlier this year. Khan has already distinguished herself as a strong proponent of heavy-handed antitrust enforcement. (Bringing the first FTC lawsuit against a pharmaceutical company since 2009 really sets you apart from the pack.) So the Meta lawsuit and its recent defeat were hardly a surprise. What made this particular case unique was Khan’s ethically dubious hand in it.
Less than a week ago, internal FTC documents came to light, exposing Khan’s refusal to recuse herself from the case after FTC ethics officials strongly advised her to do so, fearing “an appearance of partiality.” Lorielle Pankey, the FTC ethics official who authored the memo, made her position unequivocal, stating that “from a federal ethics perspective, I have strong reservations with Chair Khan participating as an adjudicator in this proceeding where — fairly recently, before joining the Commission — she repeatedly called for the FTC to block any future acquisition by Facebook.”
Perhaps even more damning than her blatant disregard for the ethical responsibilities of her position, Khan tried to conceal her actions . When questioned during a House hearing earlier this year if there were any instances in which she had not followed the advice of the designated agency ethics official, she blatantly lied and said “no.” Maintaining her feigned innocence, she even stated that her actions were “consistent with the legal statements that the [official] has made."
Although Khan's refusal to abide by the ruling of FTC ethics officials doesn’t constitute a legal violation, it crosses a dangerous line that her predecessors wisely respected. Now, less than a week after being exposed for her ethically questionable actions, Khan appears to be building on this precedent by going after Amazon.
There is currently no evidence that the ethics officials at the FTC intend to call for Khan to recuse herself from the legal proceedings against Amazon, but there is ample evidence that she is no less biased against Amazon than she was against Meta. Since last summer alone, Khan has twice used FTC legal action to extort multimillion-dollar settlements from Amazon. Such blatantly targeted legal action unsurprisingly prompted Amazon to seek Khan’s removal as overseer of proceedings against the e-commerce giant.
And let’s not forget how the youngest chairperson in the history of the FTC launched her meteoric rise to bureaucratic stardom. In 2017, while still a law student at Yale, Khan published an article in the Yale Law Journal, “Amazon’s Antitrust Paradox.” Using Amazon as the poster child of antitrust enforcement failure, she outlined a more aggressive strategy to bolster merger enforcement and litigate monopolization cases.
The article immediately garnered Khan the attention and favor of politicians on the lookout for a regulatory powerhouse. She quickly moved up the ranks, first taking the position of legal director at the Open Markets Institute, where she called for Amazon’s breakup. She then served as counsel for the House Judiciary antitrust subcommittee, where she investigated Amazon for anti-competitive behavior.
Now Khan finds herself the chairwoman of the FTC and squirming in the ethical hot seat . Far from an even-handed enforcer of the law, she has built her career engineering ways to bend the law to suit her vendetta against tech giants such as Meta and Amazon. And even now as she is embroiled in public scrutiny for her questionable actions, she has sunk her regulatory teeth into Amazon once again. But in her ethically precarious position, Lina Khan may have bitten off more than she can chew.
CLICK HERE TO READ MORE FROM RESTORING AMERICAMichael Schultz is an economist in the Washington, D.C., area.