On with Kara Swisher - How Will Lina Khan and the FTC Tackle AI?

Episode Date: May 15, 2023

After a discussion about Elon and the new “Chief Twit,” Linda Yaccarino, we turn to a woman who has refused to meet with Musk: Lina Khan. The Chair of the Federal Trade Commission has tech giants from Meta to Amazon on the defensive. Now she’s got the agency’s eyes set on the next big gorilla: artificial intelligence. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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set, grow. Go to ConstantContact.ca and start your free trial today. Go to ConstantContact.ca for your free trial. ConstantContact.ca Hi, everyone. From New York Magazine and the Vox Media Podcast Network. This is the would-be Twitter CEO, except I turned down the job. Just kidding. I would never take that job. This is On with Kara Swisher, and I'm Kara Swisher. And I'm Naima Raza.

I don't think he's ever going to offer it to you. He should. I'd be good at it. Can you send your resume to Elon? No, thank you. I don't think I've had a resume in 40 years. Well, it will be Linda Yaccarino, the former NBCU ad exec who gets to fill his shoes as chief twit. Yes. He claims he'll be CTO and executive chairman. Yeah, that's the entire company, but okay, sure. And also he's still the owner. That's the most important title. Yeah, exactly. Yeah. Yeah. That was a good little scoop on my part. I haven't

done one of those in a while. Yes. Was it a scoop? You framed it as a prediction, yeah. That was a good little scoop on my part. I haven't done one of those in a while. Yes. Was it a scoop? You framed it as a prediction, but it felt like a scoop. Everything I write, I do know. I don't make a prediction. I don't know. I know Linda really well. There was rumors of her being that. I just triangulated and figured it out. She was the obvious choice. And I noticed she'd started tweeting at him quite a bit. Oh, yeah. So we'll play a clip of that. Yeah. And I noticed she'd started tweeting at him quite a bit. Oh, yes. We'll play a clip of that. Yeah. And so let's talk a little bit about who she is. Linda Yaccarino is this NBCUniversal ad executive who also served on Trump's Council on Sports, Fitness, Nutrition. And I remember that because he had just slammed NBCU before he picked her for the position. So she's they have lots of mutual friends. Yeah. No, her husband is quite conservative too. They run in that crowd. They run in that crowd.

But talk about who she is and how you know her. Well, I know her because NBC made a significant investment in Recode. And so I dealt with her a lot. I went to a lot of events with her, just the way I do with Vox, a lot of advertiser events. She had me in a lot to talk in front of advertisers. And she's smart as can be, a lot to talk in front of advertisers. And she's smart as can be, very good ad salesperson, very well regarded, has wanted to be a CEO like many prominent women in her position. She wanted to make the jump from CMO to CEO. And so, you know, he wants to make peace with the ad community and she's well regarded and that will probably work here. The question is whether they'll come back or not. I was having dinner the other night with a lot of ad people and they're like, no,

it doesn't even work. It didn't work when it was good. I don't know why we would not spend our money on Instagram and elsewhere. Maybe she'll make a difference or at least try, I guess. People on Twitter have become obsessed with her and are kind of plowing through her followers to ascertain who she is amongst the names that Twitter users are pulling out that she does follow. They're pointing to Sidney Powell, lives up TikTok, Mike Pompeo, Melania Trump, Rudy Giuliani, Brad Parscale. So a lot of- Kara Swisher. Right wing. She follows Kara Swisher.

She follows you. Oh, there you go. But she also does follow people like AOC, Kara Swisher, etc. She is quite conservative for the media environment. I think most media people, I find, I don't find them liberal, especially business people. They're sort of in the middle or else they're sort of the garden variety Republicans of yore. But she's not. She's not. She was definitely on the Trump train. Although I was reading a piece where conspiracists who had been banned from Twitter were saying that because she's affiliated with World Economic Forum, and they have that conspiracy theory that the World Economic Forum is trying to liberalize the world, that Elon has been blue-pilled.

Oh, okay. I don't think that's true. No, no. She's just a very good business person. We'll see. Yeah. She's going to struggle with him, I think. She's a very strong-minded person.

Now, look, he works with Gwen Shotwell at SpaceX. You don't hear about her a lot and you don't, you know, Linda likes the stage. Yes. So that'll be interesting. That she does. Linda likes running stage. So that'll be interesting. That she does. Linda likes running shows.

She likes being on stage. And so we'll see if there's room enough for both of them. Speaking of stages, she recently interviewed Elon on stage in Miami just weeks ago. Yeah, we talked about it before she did it. Let's play a clip of just the first bit of that interview and listen closely to how she greets him.

Hi, my friend. I thought X was coming out. I had some extra questions for him. I think, yeah, he changed his mind. Well, thank you, Elon. It is such a treat and a special opportunity. Welcome to Possible. And while Greg was right...

Everyone. Okay, let's have a round of applause. Well, Greg was right. You really need no introduction. But in many ways today is your introduction to the advertising community, right? I think that's a round of applause. Hello. Hi, my friend. She starts it. It's just, it's not the advice I gave her for the interview, I'll tell you.

You're so chummy. You didn't tell her to be chummy and get a job? I watched it when I was embarrassed for her. But she's an ad salesperson. That was obviously a job interview. But the interview, yeah, was really a softball. I mean, listen, ad salespeople are not people that are going to be hard on anybody they're trying to sell. So I thought it was cringy, but she's not a journalist, so whatever. She wanted

to sidle up to him and that's precisely what happened. So there you have it. By the way, you know Elon's new thing, right? You were saying he didn't innovate enough and now he has a new idea. Do you know what it is? No. Twinder, the dating app. No. Please stop. It was suggested by a user, Elon Musk follows. And Elon was like, interesting idea. New jobs too. Yeah. I'm so glad that dudes like Peter Thiel and Elon Musk are here to save our dating lives. Good luck, Linda. Good luck, Linda. Call me. Tesla shares jumped at the news. Sure. But Elon still has problems. He still can't get a meeting with our guest today. Yes, cannot. Cannot get a meeting with Lena Kahn, who has a little more discrimination, I would say.

Yes, Lena Kahn, chairperson of the Federal Trade Commission. Let's talk about Han, someone that we've interviewed before a couple of times in the last couple of years, and even before Biden nominated her to the FTC. a couple of times in the last couple of years, and even before Biden nominated her to the FTC. Yeah, she's sort of an illegal wunderkind who got a lot of attention for a legal brief she wrote about Amazon and antitrust. That was the idea of changing the nature of antitrust. And she got a lot of attention. And then she worked with David Cicilline on the investigations, and then was named the head of the FTC. Very young, woman of color, goes into the arena. And she's, of course, easily attacked by these people because they

realize who she is, which is a real activist FTC chairperson. 100%. And we wanted to talk to Khan today because she's been ahead of the curve on many things, that blockbuster paper on Amazon and kind of rethinking the connection of monopoly and being a price setter. And now she's ahead of the next curve, it seems, artificial intelligence. That's what she's largely here to talk about. And all these calls to regulate it, the FTC, of course, has jurisdiction that it can wade into this. They enforce against scams or frauds, which AI can propel, and of course, antitrust, which is relevant if you think about the Microsoft ChatGPT deal or Google getting too big. Do you feel bullish about Khan's ability to... I don't feel bullish about anyone in government's ability to do anything because I haven't seen them do it. That said, they've been very early to this and they're

talking about it a lot. I know they've been meeting with a lot of people. They just had that White House summit with the leaders, some of the leaders. And Michael Bennett's new proposed bill. Yes. They're moving in a better direction than the early internet because they know the stakes here. So sure. I mean, I think the question is, are current laws in place enough to handle it, or do there need to be new laws? There need to be a new agency. So that's the kind of things I'm interested in talking to her about. And before we get to the interview, we want to set the stage a bit on where regulation is at right now globally. Because as you said, there's a lot of momentum in the U.S., but one big concern is that the country will lead on tech, but lag on regulation,

like everything else. That's since the beginning of all tech. That's the American way. On tech, not on other things, on tech. Yeah, but the EU started, well, tech, marketing, consumer protection, but yeah. You know, we regulate a lot of things, but not tech. Yeah. We have very strong private interests in this country. The EU started crafting legislation about AI almost two years ago, and next month they're going to vote on the AI Act, which would be the first comprehensive set of rules on AI that would require disclosure of use of copyrighted material and disclosures of levels of risk. Italy temporarily banned chat GPT in March for about a month. And China just closed consultation on a new set of generative AI measures,

which they updated from last year and built on their 2017 AI development plan. All of that has been seen as a way to build up public trust in AI. So what do you think the U.S.'s move here is? Well, a couple of things. They have to be part of global coalitions around AI, and they have to start to think about what laws we have that work, that govern this, and what laws we need, and what's important, and where government needs to be in consultation with these companies, because most of it is being done by private companies. And so given how important it is and how much we've seen the internet damage society, let's try to figure out and anticipate

problems going forward. 100%. And that's the interesting thing about Lena Kahn is someone who is willing to, I agree with you, government doesn't get a lot done, particularly here when it comes to regulating tech. But she's someone who has the big guns shaking in their boots. Yeah, she does. She's a little like Marguerite Vestager, but she still hasn't been as effective as Marguerite. And that's one of the things that's important to discuss. And she's been more vilified. Yeah. She's invoked like Marguerite Vestager, but she still hasn't been as effective as Marguerite. And that's one of the things that's important to discuss. And she's been more vilified. Yeah.

She's invoked the ire of Republican commissioners on the FTC, some of whom have left. She's faced critique by the Wall Street Journal. Yeah. And most of all, she seems to have a target on her back from big tech. Yeah, well, that makes sense. Anyone who has a target means they're dangerous to them. Amy Klobuchar and many others. So, yeah, you know, you're doing something right when people more powerful than you feel threatened.

Yeah, your enemies, known by your enemies. Yeah, but that makes her a very compelling guest. And we'll talk to her about those personal stakes too. Yeah, exactly. Let's take a quick break and we'll be back with the interview. Fox Creative. This is advertiser content from Zelle. When you picture an online scammer, what do you see? For the longest time, we have these images of somebody sitting crouched over their computer with a hoodie on, just kind of typing away in the middle of the

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through its subsidiary law firm, LZ Legal Services, LLC. We got a lot to talk about, including AI, antitrust, politics, the way you're perceived in the press. So let's get started with artificial intelligence because you just wrote a terrific op-ed in the New York Times calling for more regulation on AI. Explain your argument and why it's not too late. So the argument was really underscoring that we have all of these new AI tools that are entering the market that are becoming more widely adopted, but there's no AI exemption from the laws already on the books, right? Sometimes there can be a perception that these new tools are coming amidst this regulatory vacuum. And my argument was actually, we already have laws and tools.

We don't even necessarily need new ones. Maybe we do and Congress can decide that. But let's not forget that the existing laws, the existing rules prohibiting deception, prohibiting unfairness, prohibiting discrimination, prohibiting collusion. All of those laws still apply. And where the FTC has authority, we're going to be vigorously enforcing those laws, even if it involves AI tools. So people seem to love playing with these chatbots, kind of like they did with social media. It's fun. It's interesting if you use it. It's fascinating. The dangers can seem abstract and sci-fi-ish. A lot of the polls have people not that worried, even though people who make this stuff are more worried. So walk us through two of the practical downsides, scam and fraud, that you wrote about. Because of our jurisdiction, we are entirely focused on the

here and now. And we've already seen how these AI tools, while they might provide a lot of opportunity and benefits, they can also be misused in ways that are turbocharging fraud. So what these tools do is they allow scammers and fraudsters to disseminate fake content much more cheaply, much more quickly, and on a much wider scale. And so we've already seen, for example, how people have used voice cloning to make phone calls, to pretend to be people's family members, to do very, very convincing impersonations, pretend to be a family member members, to do very, very convincing impersonations, pretend to be a family member in distress, and end up scamming family members

out of thousands of dollars. We've seen how some of these tools can be used to generate very, very convincing phishing attempts where you're kind of using somebody's social media profile to basically generate a message that is entirely targeted to them

and what their vulnerabilities might be. And again, we're seeing people being scammed out of thousands of dollars. Here, we basically have some of these chat boxes and some of these tools that are able to spit out very, very sophisticated content being used to engage not in just in scams on a massive fraud, but in highly targeted and highly precisely targeted attempts at fraud and scams. It's basically a major step up from your average con artist. And in this case, it's not linked to Section 230, which gave the early internet companies broad immunity. And these are actually the same companies, but they don't get that exemption here, correct? That's right. I mean, I'm sure there'll be various issues tested in the courts, but our sense is that Section 230 is unlikely to apply

here. It's basically instances in which these tools are being used to engage in fraud and scams. The companies that created these tools could be on the hook. Could be on the hook. And they can't say they're just a benign platform from your perspective. That's right. So you wrote in the New York Times, the last time we found ourselves facing such as widespread social change wrought by technology was the onset of web 2.0 era in the mid 2000s. New innovative companies like Facebook and Google revolutionized communications and delivered popular services to a fast growing user base. These innovative services, however, came at a steep cost. I'd love to understand why you want to use the web 2.0 analogy in this way. What are the three key turning points where we got the policy wrong?

Was it, in fact, Section 230 or lack of any kind of specific regulation? Yeah, I think the Section 230 point is a really important one. And I think there's been a lot of discussion around how when Section 230 was adopted in the late 90s, we were really looking at a very different information ecosystem. And the goals were to promote speech, avoid chilling speech in a way that now with these new technologies feels, you know, outdated in terms of how these platforms are actually working. I think the other big issues that stick out to my mind are the business models of these firms, right? These firms have business models of these firms, right? These firms have business models that are based on behavioral advertising.

They're monetizing our intimate data. And their incentive as a result has been to hoover up as much personal data about us as possible. And so there was this kind of grand bargain where, you know, we would pay $0, but we would in in exchange, be allowing these firms to effectively, endlessly surveil us on the internet, right? And now that's a business model that is baked into how these firms are operating, to their services, and we are on the back end having to deal with all of the ramifications of that, right? There are huge privacy implications. So bad policy choices at the beginning. Is there, was there, there were no policy, the policy choice to give them...

There were no policy choices in the beginning. What would have been a policy choice and how would it look today? So I think we could have more directly grappled with this question of our business models that are based on endless tracking

of individuals' data, where you don't have any purpose limitations, you don't have any limitations on why it's being collected, what it's being collected for. Is that really a healthy way to be creating a business, right? I mean, these moments of technological transition are really phenomenal, right?

They can present so much opportunity. They can present so much innovation. We just need to make sure that the rules are in place to make sure that those innovations are happening on a healthy dimension. And so we're getting a race to the top rather than a race to the bottom. And I worry that in some cases we locked in a race to the bottom with some of these firms, especially when it comes to data collection. And we're having to do a lot of cleanup on the back end. You're saying we have the laws in place to deal with this, so you don't need new regulatory scheme work? Well, look, I think Congress is contemplating a whole important set of laws right now, including on data privacy,

including on antitrust and competition. And anytime that Congress is able to provide greater clarity, fill in the gaps, that's enormously useful. For us as law enforcers, our job is to use all of the tools that we have already in the books to make sure that we're protecting people from unlawful and harmful business practices. What would you like to see Congress pass right now that they're working on? Look, there's no doubt that the types of privacy legislation and protections that they're contemplating would be a big step up. You know, we presently basically bring our privacy cases based on unfairness and deception, which are important authorities, but Congress can

address some of the data collection much more head-on. I think the antitrust proposals that were introduced both in the House and the Senate on a bipartisan basis were incredibly important. And unfortunately, we didn't see those get over the finish line. But similarly, I think filling in some of the gaps that we've seen created in light of court decisions that have made it more difficult for enforcers to reach the types of business practices that members in Congress were talking about, be it discrimination, be it types of acquisitions, that would be an improvement, too. Why didn't they get over the finish line from your perspective? Look, it's no secret, and it was widely reported, that the firms that would have been affected by these bills lobbied heavily.

They threw, you know, millions and millions of dollars. And, you know, unfortunately, I imagine that had an effect. This is one of the issues where we do see strong bipartisan support. And so it was unfortunate that we weren't able to see that over the finish line. So how do you get something through? How do you, in this case, because these are the kind of things we need right away. Does AI make them more worried? It does seem like AI could be a turning point, yet again, in terms of members of Congress, you know, recognizing just how much of a threat these tools could be if they're not

reined in appropriately and if we don't have the proper rules in place. Talk about the AI pause, whether it was the answer or not. I think it was ridiculous to say this is going to pause. How did you look at that, the idea of this group of people, some very prominent, saying we should pause this? Look, I think practically there are a lot of open questions about what that would look like. From my perspective, I'm as focused as possible on making sure that as we go forward that these companies are adhering to the law, that we at the agency are skilling up to make sure we can fully even grasp how these technologies are working. The other month, we launched an office of technology where we're bringing on data scientists, data engineers, AI experts. That's a long time coming. It's a long time coming. When I joined the agency, we had around five or six technologists. We've now close to doubled that.

We are continuing to hire. That's really not good. Yes, but within the first few days of putting out our postings, we got somewhere between 300 and 400 applications from technologists wanting to come into the FTC, wanting to do this work. So, we're enormously excited. Look, we are a pro-innovation agency. We just think that these companies need to be innovating in ways that are complying with the law. I think far too often we've seen how companies, you know, try to use the mantle of novelty to break the law, right? To say, hey, this is innovation, but really it's law-breaking. And that's what we need to be attuned to.

So when I interviewed Sam Altman, who's the CEO of OpenAI, he essentially said the safest way to deal with AI is to release it to the public and fix issues as they come up. Yet the FTC recently warned AI firms not to over-rely on, quote, post-release detection. You'd like them to test and catch in advance. Is it possible to anticipate all the issues? I think we need to be very wary of systems where it's the public that is carrying the burden of doing cleanup, right? I mean, these companies have the information, they have the resources, these are multi-billion dollar firms, and the responsibility should really be on them to make sure that before they put out some of these tools into the wild, that they're following the law, that they're safe for people. I think a system where you're putting the burden on under-resourced civil society groups, under-resourced academics,

under-resourced public servants, that just is going to create a system where you're endlessly doing cleanup rather than addressing things on the front end by the actors that are best positioned to do that. So was this a warning to them? Absolutely. We're looking to make sure that businesses are on notice, that the FTC is watching, that our existing laws and authorities apply in this space, and that they need to be complying with the law as they introduce these tools. So another thing the FTC is worried about is AI bias.

You put out a joint statement with the DOJ's Civil Rights Division and the Consumer Financial Protection Board. I love a statement just as much as anyone else, but what's the point? The point is to make sure these firms know that the existing laws prohibiting discrimination, each of our agencies has laws, be it the Civil civil rights laws, the Equal Credit Opportunity Act, that these laws are going to apply. And so, if these tools are being used to automate discrimination, they need to be on guard to make sure they know that these laws prohibiting that discrimination is going to be applied and they could be on the hook for that. Do you think it scares them in any way?

I think it's really important for us as enforcers to, again, make sure that the market knows that these existing tools apply. I think we've seen all too often instances in which companies play fast and loose with the rules, especially right at the beginning when there can be some confusion about, hey, are these new tools? Did the existing laws apply? What does that look like? What me, huh? Exactly. And so we as enforcers thought it was incredibly important for there to be absolutely no doubt, for there to be clarity and transparency for businesses that they know,

hey, all of these existing laws apply and we as law enforcers are going to be applying them. Do you think that makes them nervous or wary or not? I mean, realistically, some people suggest the power to regulate AI should lie with the FTC, but you are understaffed as it is. I think the big issue here is a lot of these tools are just going to be used in ways that are naturally part of our work, right? So, we go after fraud and scams. When these tools are being used to propagate fraud and scams on a massive scale, that's clearly within our jurisdiction. We enforce the nation's antitrust laws. And so when we see mergers or acquisitions

or potentially collusive behavior that is being facilitated through these tools, that's also going to be part of our work. So I think this is a broader point where increasingly the distinction between digital and non-digital or tech and non-tech is being blurred as these tools and as these technologies get implemented across business, right? So if we get a merger of grocery stores, there can be a really significant digital aspect of that merger, right, relating to how these companies are using the data. So I would just say digital aspect of our work is increasing and expanding across the board, just given the realities of how businesses are evolving. Some people suggest there should be a new agency. You've heard that.

Senator Bennett, I just interviewed him, said it has to be a global body. Do you think there should be a new agency with even more digital powers? Or do you, again, the FTC is understaffed and you still don't have enough funding? Look, the FTC has been around since 1914. We've made it through a whole set of... Well, look, no, I mean, again, Congress initially designed the agency to be able to stay ahead of the market to be able to keep pace. So in addition to our law enforcement tools, we have pretty extensive market study tools. So we're able to do deep market studies to make sure that we're fully understanding how tools and technologies are working. And we've used that tool time and time again. I think the fact that the FTC has

been able to survive and thrive for more than a century and really keep pace with these new technologies is a testament to how we stand ready to do the job and to rise to the challenge as some of these new tools are being introduced. Look, Congress did give us a significant budget increase. We're going to be able to hire around 150 more people. We're continuing to push for more resources. That's the amount of PR people that are focused on me at Facebook. But go ahead, Matt. I would say as a whole, we punch above our weight and we're continuously finding ways to be using our tools and our authorities to be more effective. But again, a new agency, do you think that's possible and do you think it's necessary?

Look, I personally don't think it's necessary. Of course, if Congress ultimately decides to create one, you know, we'll adjust accordingly. But I firmly believe that the FTC has the authority, has the tools, has the expertise to address the challenges that are going to be coming down the pike. And what about the global aspects that Senator Bennett suggested? He said this is like nuclear proliferation, this kind of thing, because it's, you know, whether it's killer robots or whatever, there's got to be some global body that makes decisions about things that we shouldn't make, killer robots being one of them, for example. Yeah, look, those types of, you know, make killer robots being one of them, for example. Yeah, look, those types of international bodies can be useful. For us as law enforcers, we're just firmly focused on using the U.S. laws and

authorities to protect American citizens from how these business practices could harm them. Presumably killer robots too, but there really should be someone looking into that, I think, on some level. The guy at Google obviously made that point. One of his most intense points was about that worry about something like that happening using AI. So let's move on. Do you think the administration has the bandwidth to broaden this battle with American tech companies right now? You're all still working on your original agenda or behind on it. Antitrust, for example, not getting that laws. The privacy bills haven't

been passed. The focus on this tech thing still hasn't yielded significant abilities for you. Look, I think we don't have a choice, right? As these technologies are being introduced, we need to keep pace. As we see, for example, mergers or potentially anti-competitive behavior that are being done through these tools. We need to just stay on top of that. I think, again, for me, the last couple of decades serve as a cautionary tale where there was a deep sense in the early 2000s that these technologies are so fast moving, they're so dynamic, that we as enforcers, as public servants, need to step back and let them take these technologies wherever they may go. I think we're really dealing with the ramifications of that, where we see, in fact, that, you know, monopoly

power could really lock in and can invite action by enforcers early. The assumption that monopoly power in digital markets will just self-correct, that you'll endlessly see new entry that disciplines away any use of monopoly power, I think that's just been proven flatly wrong. We've instead seen how these firms and the mergers they were able to undertake and the anti-competitive business practices they were able to engage in locked in their dominance for many years and I think came at a serious cost to innovation. But do you think you're behind on this agenda? The whole government, not just the FTC. And obviously there's action with you, with the Justice Department, but still it's moving very slowly, I think. Look, there's no doubt that there's an enormous amount of work that we still have to do. That said, I think just

stepping back, the type of reorientation that you've seen has been quite remarkable, right? I mean, in 2021, you had President Biden sign an executive order on promoting competition, and he did a couple of things as part of that executive order that were extremely important. He came out and said, the way that we've been doing antitrust and competition for the last 40 years has not kept up. And as a result, our markets are highly consolidated, they're highly concentrated, and the American people are losing out. concentrated and the American people are losing out. The second thing he did was instruct the agencies, not just the FTC and the DOJ, but agencies across federal government, be it the DOT, be it USDA, be it the FCC. He said, all of you also have competition tools. And so, yes, we need the FTC and DOJ to use their competition tools, but all of you other agencies, I'm going to be

expecting you and instructing you to also use these tools. And, you know, these are muscles that are being reactivated and it can take some time for that reactivation to happen. Is there enough time? We're acting with an enormous amount of urgency and, you know, doing everything we can with the time we have to make sure we're using all of our tools and protecting Americans to the fullest. All right. So let's go to these nitty gritty policies. Tell me where you are on junk fees. So we are proposing to ban junk fees. We got thousands of comments identifying how we might do that. Now we're taking a closer look to figure out how to go forward. We've also been bringing lawsuits against junk fees. So we brought a lawsuit against Vonage last year where they

had basically trapped people into subscriptions and charged them junk fees when people were looking to cancel their subscriptions. And so where does that go? Lawsuits. So we're continuing to bring lawsuits. We're looking closely at the public comments that we got, which we have to do by law. And now we're going to be thinking about what does a rule here look like? Funeral homes posting their prices online. Another one. That's a bigger push towards transparency of pricing, correct? Exactly. And it goes back to, again, this example of

as the market changes, as people are doing more and more work in business online, our work has to match that, right? So the fact that more people are now looking for funerals and trying to compare funeral pricing online means that we think that, you know, funeral homes should have to adjust accordingly. All right. What about non-competes, which I think you're working to ban in a proposed rule next year? I think this is a significant thing. So we proposed in January to prohibit non-competes in employment contracts. We got 26,000 comments on that proposal from workers, from employers, from trade associations, from people sharing their own

experience of how a non-compete locked them into a job, even when that job was not good for them, was, you know, subjecting them to bad conditions to prevent them from getting a better opportunity, better wages. And so we're looking closely at those comments and figuring out where we should land. What's the best argument about that? Anti-capitalist would be mine. Like, you can't do what you want to do in a job. It seems ridiculous on every level. Yeah. I mean, look, you know, non-competes, they're literally called non-competes, right? And so for an agency that's supposed to enforce fair competition laws, it raises a lot of concerns. It's kind of easy pickings. Yeah. I mean, you're locking people in. And I think one of the interesting things that we learned when looking closely at this

is it's clear that this has a bad effect on workers, right? Workers are losing out. They're stuck. They're being locked in to these jobs. Our economists estimated that it's depriving workers of around $300 billion a year. But stepping back, we also have seen how these non-competes are actually affecting competition. They're affecting new business formation. They're affecting startups. And so we would also hear from new businesses, from startups about how they wanted to enter a market. They were able to secure capital.

But ultimately, the relevant workers were all locked up through these non-competes agreements, and so they weren't able to build and scale. Sometimes we see how it's the executives at incumbent existing firms that are best positioned to actually spin off, create their new venture, but they're also blocked off from doing so because of these non-competes. So we see an effect on workers. And who do you expect the most pushback from? Look, it's no secret that, you know, big trade associations, associations like the Chamber of Commerce have said that they oppose this rule. And so, you know, they've made submissions and we'll take a look at those as well. And then you'll have a rule, a new rule.

That's the hope. Can you just say, they're done. They're done. No. We take very seriously just the serious impact that these non-competes are having on people's day-to-day lives, especially in the current environment where, you know, workers have some leverage, they have some power. They should be able to use that to get a better job, to get a job that's better fit for them, that has better wages. And so the idea that these non-competes are locking people into place seriously concerns us.

And so we're bringing a lot of urgency to this work. Yeah, I was with some chamber of commerce people and they were bellyaching over it. And I said, oh, you bunch of communists. They didn't like that too much. Anyway, you might try that. I don't think that'll work for you. We'll be back in a minute.

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blocked the deal. Did you discuss the case and your take on this? So look, the FTC sued to block this back in December. We generally have information sharing and cooperation agreements in place with other enforcers, but we never outsource our authority. Each jurisdiction is always making its own independent judgments. That's the accusation against your outsourcing or your colluding. Yeah. I mean, candidly, this is quite wild because, you know, for decades now, including under Republican administrations, the big push from the business community was, in fact, for the FTC and DOJ to be working more closely with our global counterparts. And so, you know, we've been quite surprised to now see this sudden change of heart.

So where does that go? Where's the suit right now? So we filed a lawsuit. There's going to be a trial starting in August. And so we'll see how that goes. Your best argument? The complaint lays out a whole set of concerns, including concerns relating to the cloud market, subscription markets. And so the complaint notes that some of these markets are still evolving or still growing, and it can be especially important in those moments to preserve competition. And so these are arguments that have been made in the complaint. Okay, let's move on to Facebook. What's the philosophical underpinning for the monopoly case against them?

So Facebook is a repeat violator at the FTC. There was a consent decree that goes back close to a decade that the FTC in 2019 found that they have violated. The recent news suggests that they may have also been in violation of this latest consent order. And this is really prompting a step back and a close look at what does it take to make sure that firms across the board are actually complying with the law? Are fines, even if they're big enough, or do we as an agency need to be looking at the underlying business models and the incentives that those business models are creating to make sure that firms are not able just to treat these consent decrees or even fines as a cost of doing business and they're actually fully complying with the law. So in this case, where does it stand right now?

So we voted out an order that would change a consent decree. Now Facebook has an opportunity to make a filing, and then we'll take it from there. We also have a separate lawsuit that was filed before I arrived at the STC looking to address the fact that Facebook's acquisitions of Instagram and WhatsApp were illegal, that it made them basically to maintain its monopoly as the market was transitioning from desktop to mobile. So that lawsuit is underway. When I came in, you know, the judge had tossed the case out. We filed an amended complaint.

We survived a motion to dismiss. And so now the trial is proceeding. Does Lena Kahn have a meta fixation? This was in the Wall Street Journal. It seems like the Wall Street Journal. Does Lena Kahn have a meta fixation? This was in the Wall Street Journal. It seems like the Wall Street Journal has a Lena Kahn fixation. I think when you have companies that are repeatedly before a law enforcement agency, you need to ask serious questions about whether these companies are recidivists and whether they have a challenge in abiding by existing laws. Recidivists. That's a good word.

That's a loaded word. Meaning that they will continue to do this until you stop them. I think we have a serious problem where companies, oftentimes big companies, can treat law enforcement actions or even fines as a cost of doing business. And we need to make sure that they're abiding by the law and that honest businesses that are abiding by the law are not at a competitive disadvantage because they're actually following the rules and losing out to companies that aren't. Do you think Meta is a particularly bad recidivist? The FTC's own history shows that time and time again, the agency, again, under my predecessors, has had to take action against this company. And so that's just

part of the public record. Twitter is under two consent decrees, speaking of which, in an active investigation. I know you can't comment on it, but let me pose a hypothetical. Is it okay for a company to misrepresent who is and isn't paying for the service they offer? For example, I did not buy a blue check and it looks like I did. On its face, that type of deception could be quite concerning and clearly fall within the FTC's jurisdiction. And what are you going to do about it for me, particularly? Look, we've been following a lot of the developments at Twitter quite closely. As you noted, this is a company that's been under a consent decree at the FTC for a decade, right? This far preceded any new ownership that took place last year.

And so even a decade ago, the FTC found that the company was representing how it was using people's data. There's a lot of personal data that's tied up in Twitter. And so anytime we see reporting that data might be susceptible to misuse, we take that seriously and look at that very closely. Do you think the blue check thing is misrepresentation? There's a legal test that you go through to show deception. But on its face, I think if you're representing that there is a marker that somebody has paid for something, but in fact they haven't, that's a concern. I think we also can see glitches and changes

where it might not be intentional. And so that's something that we need to be aware of that distinction as well. And find out it's intentional. According to the GAP's subcommittee on the weaponization of federal government, you've been harassing Twitter. How do you respond to that? Again, Twitter has been under FTC order for over a decade. This is a company that was found early on to be playing

fast and loose with people's data. Last year, again, it was found that Twitter had actually violated that original consent decree. And so we take law enforcement very seriously. We think it's incredibly important that companies are abiding by the laws on the book. The consent order is public. It lays out what Twitter was required to do. One of the things it was required to do is monitor and police very closely what types of third parties had access to user data. So if we at the FTC are suddenly

reading that all sorts of people have been granted access to Twitter systems, that legal teams that were responsible for complying with the FTC consent order have been fired, I mean, it would be malpractice for us to turn a blind eye to that. And so I think it's absolutely our obligation, especially when you have these repeat offenders, to look very closely to make sure we're protecting people. So you're not harassing Twitter? Absolutely not. Now, Elon Musk reportedly tried to meet with you. Why did you say no? We oftentimes hear from executives about wanting to do meetings, and we consult with our staff who are doing the investigation on the ground. One thing we want to avoid is companies that are obstructing FTC investigation,

trying to short circuit around that by just trying to ask for a meeting at the top. And so we engage with our staff and, you know, learn from them that unfortunately there were still some deficiencies in Twitter's compliance. And so let them know that, you know, they should focus their efforts on complying with the FTC's requests. So did you want to meet with them? Look, you know, there's always a time to meet top-level executives as part of our process, and so if that comes to bear, we'll be happy to do so. Be happy to, but for right now, no.

For right now, we recommended that Twitter focus on complying with existing information requests that FTC staff had put out. So Elon, if you comply, she'll meet with you, I guess. Here's a case that's been decided. The FTC tried to block Medit into buying a VR fitness company called Within. The judge approved the deal. Even though you lost the battle, it might help you win a larger war. Explain the larger antitrust strategy here. Look, we brought this lawsuit because we believe that on the facts, we had a good case that we should win. It was a righteous case and it was an important case. It was a case that was learning, again, from past inaction, where these firms are oftentimes looking to buy up companies in adjacent markets to try to lock up those markets. And so we thought it was an important

lawsuit. We were disappointed that we did not win the preliminary injunction. But the court's opinion was really important because it identified a few key ways in which the agencies could be continuing to enforce anti-merger law in high-tech markets. So the court noted that the potential competition and actual competition theories apply in these new markets. Mehta's argument had been, oh, these are decades-old doctrine. They don't even apply in this new market. The other thing the judge acknowledged was that even when you have a lot of dynamism in a particular market, that doesn't necessarily mean that you don't have a monopoly problem.

And so he noted that you could both be seeing a lot of entry and exit into the market. Which was Meta's argument. Exactly. And so there are all these little ways in which the judge actually affirmed the FTC's overall approach. It was really right at the finish line that he said we weren't able to get over the line. But we got really close and, you know, we're going to be continuing to enforce the law. And we're appreciative of some of the judge's analysis and think it really corroborated the theory that we were bringing. But speaking of which, one of your then colleagues, Christine Wilson, said you should have recused yourself

from the meta within and cites previous recusals by FTC commissioners. Why didn't you recuse yourself? Look, recusals are most appropriate under the ethics laws if you have a financial conflict or if you have a family conflict. And so if your partner works at the company

or if you have huge amounts of stock in a particular company, that's where we traditionally see conflicts of interest under the ethics laws. In this instance, as an academic, you know, I had made certain statements that were publicly known before I was nominated, before I was confirmed. You had an opinion. Yes. And again, I laid out, you know, in a statement why I decided not to recuse. A majority of the commission determined that that was appropriate. And so I'm confident that we acted entirely appropriately here. And honestly, we need to be on guard for when big companies are looking to intimidate public officials. And so I thought it was important. Well, this was a commissioner who was, she wrote also when she detailed her concerns in the dissent that they were redacted in order to protect you from embarrassment. Is it normal to redact non-confidential information

from commissioners' opinions? We have a longstanding practice adopted in the 80s under a Republican chair to redact non-public information when it relates to staff deliberation. I should also note that Facebook made this argument in federal court and Judge Boasberg of the D.C. district determined that it was entirely appropriate for me to be participating in this.

Meaning that having an opinion wasn't a problem. It was- Exactly. He said, in fact, this is probably why she was selected for the job. Right, right, which was very clear. You do get a lot of attacks in the media in a lot of ways. Recent headlines, Lena Khan, this is just the Wall Street Journal,

Lena Khan's merger myopia has deadly consequences. Lena Khan blocks cancer cures. Of course, Lena Khan has a meta fixation, as I noted. Why do you think that is? Embedded in the FTC's DNA, when you have an agency charged with taking on monopolies, that oftentimes involves taking on some of the biggest, most powerful companies in the world, right? And those companies oftentimes have a lot of resources to throw at attacking or trying to intimidate law enforcers that are just trying to do their jobs. Stepping back, I will say there's also a realignment happening here. There is a bipartisan

realignment where we see significant concern on both sides of the aisle about the ways in which monopoly power is hurting our economy, is hurting our markets, is making life worse for consumers, for workers, for new businesses. I just testified on the Hill the other day, and even when hearing from Republican members, I hear a lot of concern about how monopoly power, for example, is hollowing out rural America, making it difficult for independent pharmacists, independent grocers to do their job. There's a lot of bipartisan concern about surveillance of children, about the ways in some of these technologies are hurting children. And so I think that bipartisan consensus and realignment also worries a lot of people. And oftentimes there are efforts to try and draw a

wedge in that. Yeah, I think it was both Bennett and Buck, both from Colorado, who said Denver businesses have more regulations than Meta, for example, which I thought was an interesting way to put it. But the companies are also coming for you and continue to, they've been doing that. It's very personalized. Can you comment on that, the personalized nature of it,

that you're some angry person, especially a woman, coming after them? I knew up when I signed up for this job that if you're at the FTC looking to take on monopolies, as Congress instructed us to do, that that's going to come with resistance by these entrenched firms. One thing I stay focused on is the people that we're actively helping. So the patients who were fighting to make affordable medicine, the, you know, consumers that were fighting to make it easier to cancel their subscriptions, the workers whose non-competes would be eliminated from our rule. And so really staying focused on the people that rely on the FTC, the people who don't have powerful lobbyists and lawyers fighting for them in D.C. We stay focused on the public that Congress instructed us to serve.

What about you? How does it impact you? Look, you know, there's a lot of noise that you have to block out in this job to stay focused. I think oftentimes the biggest advantage that adversaries can have is to try to distract you, to try to waste your time, to take up your time, to wait out your time in these jobs. And so that's why being able to block out the noise and staying focused is incredibly important. Has any of the noise gotten in? We're all human. And so sometimes when you're reading the 51st or 52nd op-ed about you on the Wall Street Journal board, you know, you have to step back and think, huh, this is interesting. But again, these attacks are not new for me. Even

before I joined this job, there were enormously powerful entrenched interests trying to delegitimize some of the work that we've been doing on the anti-monopoly front. So in this job, it's just happening at a higher volume and greater frequency. But we have a really fantastic team of staff at the FTC that have long stood up for the American people against monopolies, against monopolies engaging in illegal behavior. And that's what we'll continue to do. So my last question, your early career and appointment had a lot of promise and potential. You were seen as a wunderkind of antitrust, really. You got so much attention. I'd like you to accurately assess, I mean, I shouldn't use it, I assume you're accurate, accurately assess your achievements and where you think you've lagged if you think about it.

We came in with an ambitious agenda. We've been quite successful in already bringing several major lawsuits, proposing several major laws, I think one area where we see significant success is achieving deterrence. Achieving deterrence, especially on the merger front, where we've seen a whole set of reporting. I believe there was still just a report in Bloomberg yesterday noting that both the FTC and DOJ have been successful in preventing illegal deals from even getting out of the boardroom. And so as a law enforcer, as you're thinking about how you can be most successful, deterrence is one of the most important things. The illegal behavior is not even happening to

begin with. So that's an area where I think we've seen enormous success. There's no doubt that, especially with the lawsuits against anti-competitive behavior, that those can just take longer to put together. Candidly, businesses are not always incentivized to provide all the information that enforcers need. They can end up engaging in all sorts of delay tactics to try to draw it out. So I would say some of our lawsuits is an area where we're looking to be able to do more, do more quickly, or hoping to have more to show publicly for that in short order. What about you yourself, a mistake that you would go back and correct? I think stepping back, you know, when I came into this job, I was new to the agency. I joined during the pandemic, and I think there was more we could have done to, you know, get to know a lot

of the terrific staff here and, you know, make sure that we were closely aligning with them, closely identifying what are the key priorities and make sure that we were all marching in one direction from the get-go. You know, I think there's an incredible amount of important work that we're doing right now to create and set fair competition rules for the economy and make sure that companies are abiding by the existing laws on the books. That can be enormously challenging, especially when you're going up against some of the most powerful firms in our economy and our staff day after day are on the front lines of that. And actually, very last question, do you intend to stay here on for the entirety of the Biden administration?

Yes, absolutely. And if he wins? We're really eager to see what happens in the election. And I think on many accounts, it feels like our work is just getting started. And so additional opportunities to be able to continue doing that will be very appealing. All right. Thank you, chairperson. Do you like chairperson or chairman or chair? You can call me Lena. Lena. Okay. I'll call you Lena. I feel like I should show a respectful chair thing to you. But anyway, we really appreciate talking about this really interesting time for tech,

and especially as AI enters the picture. Thanks so much. Recidivism. That was a word. She knows the word she picked. I imagined her as like a criminal justice reform advocate, kind of putting Mark Zuckerberg into a cozy new home where he could read Dave Eggers books and she gets him a job in a small, not yet acquired startup. Yeah. It was a word. That was a word she selected rather carefully, I think.

A criminal. You don't drop that word into a conversation very often and there it was. What do you think she was trying? Criminal. Yeah, criminal. Convict. Criminal. Repeat offender. She's an excellent lawyer, that Lena Kahn. I'll tell you that. Do you think she has a meta fixation?

No, I don't. I think they're the biggest. That's who you look at. And that's what she said. Like, we have to look at the giants and that's that. And then she's right. She's 100. That's who you look at. Do you have a meta fixation? No. No. No, it's the biggest. An Elon fixation?

No, you do now. I don't. I don't have an Elon fixation. I'm tired of listening to him, but that's okay. He's interesting. I did appreciate you taking the time to talk about the blue check that he foisted on you. He foisted. And exactly. I don't want it.

I want Lena to go after him on my behalf. She will avenge you. She will avenge me with the blue check. Maybe. God, what an asshole. But in seriousness, what I loved about that conversation was that Lena was challenging us as a society to kind of rethink the defaults that we accept. She's like, we live in a world where we assume our data belongs to other people. We assume that our employment is shackled.

We assume that, or the price we're paid for our work, you know, means that our employers own our data and own our time for a little bit after we work. Sure. Where the public has to bear the burden of cleanup. And I appreciate that she is saying, hey, these are not defaults set in stone. These were choices that were made, and we can actually reevaluate those choices. Yep. And she's gotten very good at being diplomatic. I was noticing that before she was much more fiery. And now she's like, under Republican presidents, they did this. She understands that she has to be a little less, you know, as a woman, as you know, and you have to be a little less angry. You have to be a little

less strident is the word men always use for women. And so she was very deft in using, you know, well, that happened at a Republican president. That happened. I thought she was, I think she's improved rather dramatically in that regard. We had to really push her to personalize her own answers. Yeah. Because she refused to say I back on anything. It's we, we, we, bipartisan. Sometimes people might try to drive a wedge. We're all human.

She had issues at the beginning with the staff. Like she sort of barreled in there. And I think she's learned her lesson. You can't, in Washington, the staff isn't with you. They leak about you. So I think she, and that's declined a lot. Right. Except for that one commissioner who has their own issues.

Our most diplomatic answer was when you asked her about Biden's next term. She would have been shouting four more years. But instead, she's like, we're really eager to see what happens. Yeah, well, I'm sure she'll have a million offers or academics. She doesn't seem like a person who'd ever go to the other side. No, no, but she could run for office. She'd stay academic, not corporate. I'm sure she'll go back to wherever she...

Columbia Law School. Columbia. Yeah, so she has a long and storied career ahead of her. Yeah. One thing I wish we'd talk more to her about is TikTok in China, because that seems to be, in high school award terms, the most likely to succeed defense that these companies raise. Yeah, but that's not her area. That's a congressional issue at this point.

Yeah, and the national security at this point as well. Yeah, it's a Biden issue. So we'll see where that goes. But the companies love to wave their hands and say, if you regulate us, how will we compete with China? I think she thinks everyone should be regulated. Yes. And the regulations that apply to U.S. companies will also apply to TikTok. That's correct. Not necessarily the other way around. So that's a good reason for it. Last thing of all the cases and initiatives

that you guys discussed, what is the thing you're most excited about her taking on? I'm still interested in the non-compete stuff. I think that's a real asset to have passed. It's a small little important thing that hinders innovation. And so I was really heartened that she did that. And I think she's really intelligently approaching

the AI stuff. I've had a lot of discussions recently with a lot of high-ranking officials about this, and I don't find them stupid. I know it sounds dumb. And they're eager to learn, for sure, and really bringing people in and eager to know who else they should talk to. So that's a good thing. And so I thought that was those two things. The non-compete is an important thing. Everybody should be for that. It's ridiculous. It's going to be interesting how that plays out because it's particularly rampant in industries like finance.

Everywhere, everywhere. I was doing a story on it for the Times and the individuals I was talking to took home tens of millions of dollars a year. So they're hardly... No, of course not. But you shouldn't be paid not to work. It's just if you're an innovative person, you should be out there creating a new thing. That's it.

It's just so ridiculous. It's such a ridiculous. We don't have, you know, I mean, it's not Johnny Tremaine anymore. Yeah, but it wasn't quite like, I love that you were saying it's anti-capitalist. It's anti-capitalism. The Chamber of Commerce.

It's communist. It's not communist. It's communist. People love to throw out the word communism and socialism in America. It is. I don't think people should be told where to work after they finish a job. I liked her anti-competitiveness argument because it's actually, she was kind of taking a socialist argument in some way. She's saying workers have to take back their rights.

They should. And she talked about worker leverage. Let's see in this economy if workers can hold on to it. Some will, some won't. All right. Well, I'm excited to see what she's going to do with junk fees because I can't cancel anything. Let's read us out. Today's show was produced by Naeem Araza, Blakeney Schick, Christian Castro-Rossell, and Megan Burney. Special thanks to Mary Mathis. Our engineers are Fernando Arruda and Rick Kwan. Our theme music is by Trackademics. If you're already following the show, Thank you. Back on Thursday with more.

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