If Amazon is afraid of anyone, it’s Lina Khan.
Amazon’s lawyers proved it on Wednesday when they filed a petition with the FTC requesting that Khan, the FTC’s chair, recuse herself from antitrust investigations into the company.
Long story short, Amazon is afraid of Lina Khan because she published this article in the Yale Law Journal. The full article is an absolute monster, size-wise, but it’s compelling right from the beginning and she does an excellent job of articulating how Amazon manipulates the weaknesses and outdated assumptions of existing antitrust law.
Now, we’re not without bias, but Amazon’s argument in the recusal petition isn’t the sturdiest we’ve ever heard. It basically amounts to “we don’t think she’ll have an open mind because she’s proven she already knows stuff and can form opinions about it.”
Amazon seems to imply that FTC officials can’t be fair or reasonable to Amazon unless they’re also ignorant of Amazon, or at least willing to feign ignorance in silence. Because ignorance and silence are exactly what we want from experts in key regulatory positions. (Duh.)
It is true that Khan has made a name for herself by putting Amazon under the microscope—and we’ll admit that the conflict of interest…? question did float across our minds.
But the next thoughts were mostly rebuttals aimed back at Amazon:
1️⃣ You don’t get to Khan’s position (by the age of 32) fueled only by some kind of grudge against Amazon. To pretend otherwise is to ignore her qualifications, or to pretend that she just invented all of the information she’s quickly become respected for sharing (in one of the most rigorously peer-reviewed law journals in the world, no less).
Also: she’s not focused exclusively on Amazon. Other companies have come under her microscope too; she’s just best known for looking into Amazon.
2️⃣ Even if you “play along” with Amazon and presume that she can’t be truly impartial… well, what precisely is the problem? She’s the FTC chair, not a judge; she doesn’t (and shouldn’t) have to bear the same standard of impartiality. She is checked and balanced by four other members, two of whom consistently diverge from her in their opinions. In the grand scheme of things, she does not control what happens to Amazon here.
3️⃣ Amazon is pre-emptively asking her to recuse herself. She’s been in this position two weeks and hasn’t really made any moves yet. Within the context of her FTC appointment, she’s not said anything about Amazon yet.
A similar but separate point:
4️⃣ Amazon is pre-emptively asking her to recuse herself. In other words, they single her out specifically because of what she’s written (and, ahem, proven she can find and articulate even without the power of the FTC behind her).
Sure, it’s worth asking how the law defines conflict-of-interest stuff for an FTC chair. But it’s also worth noting that Amazon has a clear business incentive to shut her down: of all people, she can figure out how to find the bodies (and that’s abundantly clear once you’ve read a bit of Amazon’s Antitrust Paradox, the big piece we mentioned before).
Khan recusing herself would also be likely to create a 2-2 deadlock with the four remaining members split across party lines—and Amazon would prefer this because it would increase the chances of any FTC action stalling out or resolving in their favor.
Big Picture 🌎 Khan has been a “known adversary” within Amazon HQ—and now that Khan is officially FTC chair, they won’t sit around and wait for her to make all the first moves. (Amazon’s petition is the first move here.)
Amazon has to start building a narrative now, much the same way a squirrel has to start building a stash of acorns well before the brutal winter. It’s damage control.
If your best defense is to discredit someone, or at least cast a shadow over their credibility, you have to leave a “breadcrumb trail” of headlines over a period of time. You can’t expect to sway public sentiment in a single news cycle.
How convenient for Amazon that Jeff Bezos owns the Washington Post.
More here from the Wall Street Journal.