Khan: FTC Willing to Name Twitter CEO if Privacy Claims Confirmed
If the FTC finds Twitter CEO Parag Agrawal directly participated in data practices that violated a 2011 consent decree, the agency won’t hesitate to name him in a complaint, FTC Chair Lina Khan told members of the Senate Judiciary Committee during an oversight hearing Tuesday.
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Khan told Sen. Richard Blumenthal, D-Conn., the agency is focused on strengthening enforcement action because it’s tired of companies treating agency orders like “suggestions.” Blumenthal noted that testimony from Twitter whistleblower Peiter Zatko suggested recent data security allegations involve leadership, including potentially the CEO. Khan declined to say whether the agency is investigating Twitter and its 2011 order. Asked about willingness to name Agrawal, Khan said: “Absolutely. If we have a basis for naming individuals because they meet the legal standard, we won’t hesitate to do it.”
To “toughen up” FTC enforcement action, the agency said it's making it a priority to name company executives in complaints when appropriate, when those executives have actively participated in or directed the illegal conduct. Many past orders also leave a lot of the remedies up to company discretion, which the agency is now tightening up, she said. The agency’s privacy rulemaking could potentially help the agency address business models that incentivize maximization of data collection and surveillance.
Antitrust enforcers’ biggest hurdle is a lack of funding, DOJ Antitrust Division Chief Jonathan Kanter told Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., noting his division has 350 employees fewer than it did in 1979. Khan agreed, saying it’s “extremely difficult” for the FTC to fulfill its statutory mandate due to the lack of resources. Khan said the FTC is “outgunned” in its Facebook case at least 10 attorneys to one. Klobuchar urged support for her merger filing fee legislation with ranking member Chuck Grassley, R-Iowa. She also noted the attendance of House Antitrust Subcommittee ranking member Ken Buck, R-Colo., at Tuesday’s hearing and her bipartisan efforts with him to pass antitrust legislation.
Kanter urged support for her American Innovation and Choice Online Act and the Open Markets Act, both of which are awaiting Senate floor votes after passing the Senate Judiciary Committee. He also backed passage of the Merger Fee Modernization Act.
Senate Antitrust Subcommittee ranking member Mike Lee, R-Utah, credited the Biden administration for continuing to pursue the Trump administration’s antitrust lawsuits against Google and Facebook. But he criticized the current regime for “attacking” the consumer welfare standard, favoring litigation over settlement and a “flood of complaints” that the FTC is being politicized. He blamed the FTC for delaying and unduly burdening business activity, including for harmless mergers. Such costs don’t help consumers, he said: It’s “pettiness” that makes doing business harder. He also questioned the FTC supposedly pushing contradictory legal theories in its antitrust case against Meta and its efforts to block the company’s buy of fitness app developer Within. Khan wouldn't discuss specifics about the cases, saying she doesn’t want to jeopardize ongoing litigation.
Republican Commissioners Christine Wilson and Noah Phillips noted in testimony to the subcommittee that in fiscal 2020, the FTC brought 28 merger enforcement actions, versus nearly half that amount in 2021. There have been 19 challenges in 2022 with two weeks on the fiscal year remaining, Lee noted.
Khan cited the FTC’s efforts to conduct “robust” law enforcement efforts in fiscal 2022, citing lawsuits affecting semiconductors, healthcare, the defense industry and virtual reality. She noted at least six acquisitions have been abandoned due this year to an FTC lawsuit.
Senate Commerce Committee Chair Maria Cantwell, D-Wash., renewed calls Tuesday for Congress to pass legislation that would restore the FTC’s Section 13(b) authority, which the Supreme Court struck down in its FTC v. AMG case (see 2104270086).