FTC Chair Lina Khan has unrealistic views about the agency’s authority, and her bold strategies to modernize antitrust policy are likely to fail, former agency officials told an Information Technology and Innovation Foundation event Thursday. Khan’s attempts to revamp the FTC’s antitrust policies through rulemakings tied to unfairness authority is a “dead end,” said ex-FTC Commissioner Maureen Ohlhausen, now at Baker Botts. Khan is basing her decisions on overly broad interpretations of the FTC statute, an approach that resulted in the Supreme Court’s decision against the agency in the AMG case (see 2104270086), said Ohlhausen. Pursuing many rulemakings will also mean far less staff for enforcement, she said. “This is a recipe for more political control, less public input” and “probably slower rulemakings,” said Howard Beales, a Consumer Protection Bureau director under President George W. Bush, now at George Washington University. The current administration is deploying a cleanup strategy in response to years of lax antitrust enforcement, said American Antitrust Institute President Diana Moss: There’s credible evidence antitrust enforcers should be paying close attention to the debate of whether there’s observable increases in market concentration. Enforcers largely have the tools they need to enforce merger control, she said, arguing the problem is that the consumer welfare standard’s broad standards have been underutilized. There isn’t a “single feature” of current antitrust law that Khan “doesn’t hate,” said George Washington University law professor Richard Pierce. He noted Khan’s attempts to streamline the FTC’s Magnuson-Moss rulemaking procedures because the average timeline for such a rule is about eight years. The agency is subject to Mag-Moss procedures, as opposed to processes under the Administrative Procedure Act, which take anywhere from one to three years. It would be “foolish to go down that road” because the Mag-Moss prospects are so “unpromising,” he said.

Google will produce a random sample of attorney-privileged emails by April 19 so the U.S. District Court in Washington can decide whether to compel disclosure of all such emails (see 2204070065), Judge Amit Mehta ordered Tuesday in docket 1:20-cv-03010. DOJ claimed Google has been hiding emails in its antitrust case by using flimsy attorney-privilege labels, which Google denied. Mehta ordered the company to produce a random sample of 210 “silent attorney” emails, or about 1% of the 21,000 emails fitting Google’s description. The company was ordered to deliver a “spreadsheet with privilege log entries as they pertain to that sample of emails.”

“Gaps in readiness” are seriously hampering the ability of many organizations to “manage and recover” from ransomware attacks, a Zerto study found. “The research also underlines the increased risk to mitigation strategies presented by widespread skills shortages and over-reliance on internal resources,” said the Hewlett Packard Enterprise subsidiary Tuesday. In an ESG survey of 620 “qualified respondents” in North America and Western Europe in December, 73% of respondents said their organizations were victimized in the previous 12 months. It said 61% of respondents whose organizations paid a ransom were then subjected to further extortion attempts. Paying a ransom is “no guarantee to getting a business completely back online,” the survey found. Only 14% of respondents said their organizations got 100% of their data back “even after acceding to a ransom demand,” said Zerto. Nearly half of survey respondents (45%) “are struggling with skills issues that will help them respond to a ransomware attack,” it said. Meanwhile, analysts at Skybox Research Lab uncovered a 42% increase in new ransomware programs targeting known vulnerabilities in 2021, compared with 2020, reported the cybersecurity company Tuesday. It unearthed 20,175 new vulnerabilities in 2021, the most ever reported in a single year, it said: “These new vulnerabilities are just the tip of the iceberg. The total number of vulnerabilities published over the last 10 years reached 166,938 in 2021 -- a three-fold increase over a decade.”

Cable operators see “lagging deployment by others in the internet ecosystem -- creating gaps that are undermining the efficacy of RPKI [resource public key infrastructure] across the Internet,” NCTA said in comments posted Tuesday responding to the FCC inquiry on border gateway protocols (see 2204110057). “Internet routing security is a global, collective action issue, calling for engagement by ISPs, non-ISP … operators, foreign entities and others,” said the filing in docket 22-90.

A retaliatory government investigation into a platform’s content moderation decisions chills editorial judgment and harms internet users, tech groups argued Monday before the 9th U.S. Circuit Court of Appeals in 21-15869. Twitter sued Texas Attorney General Ken Paxton (R) in 2021 after the AG opened an investigation following Twitter’s decision to suspend ex-President Donald Trump for his actions linked to the Jan. 6 Capitol siege. The company is seeking a panel rehearing and rehearing en banc after a federal judge in California dismissed the lawsuit, calling it “premature.” NetChoice and the Computer and Communications Industry Association filed an amicus brief in support of Twitter, saying courts recognize editorial judgment and the protection of content moderation under the First Amendment. The Center for Democracy and Technology, the Electronic Frontier Foundation and R Street Institute sided with Twitter. It’s of “exceptional importance” to the public for the platform to be able to challenge a retaliatory, chilling investigation before the probe is concluded, CDT wrote. The Reporters Committee for Freedom of the Press and the Media Law Resource Center also supported Twitter. The question is of exceptional importance to news media and the freedom of the press, they wrote: The First Amendment “flatly prohibits government interference with the editorial judgements of private publishers.”

Platforms aren’t common carriers, commenters argued last week in amici briefs before the 5th U.S. Circuit Court of Appeals, siding with the tech industry in a lawsuit against Texas’ social media law in case 21-51178 (see 2204080019). Carriers such as phone utilities are "fundamentally different" from platforms “because they facilitate private communications, while platforms exist for the purpose of publishing users’ speech,” wrote Chris Cox, a former member of Congress from California (R) who co-wrote Section 230 (see 2009020064): There’s no reason to believe telecoms endorse or are even aware of conversations they carry, but platforms can’t avoid being linked to the content they publish, he said. Section 230’s liability shield doesn’t remove a platform’s First Amendment right to choose the content of its own message, he said. By trying to stop censoring of conservative views, Texas “adopted a progressive legal theory to impose its own form of internet censorship,” wrote the Cato Institute: The state’s arguments are “fundamentally at odds with the core First Amendment values of a free speech marketplace.” Social media platforms aren’t common carriers but do have a right to editorial discretion, it said. The First Amendment bars the government from “imposing its preferred editorial viewpoint, even a notionally neutral one, on private publishers,” Reporters Committee for Freedom of the Press argued. The new law would allow Texas to impose editorial judgment “not only on the new forms of digital media it targets now, but also on traditional news publishers.” If allowed, the Texas law “will impinge on the critical statutory and constitutional rights all Internet platforms and speakers depend on,” said the Copia Institute, think tank arm of Techdirt publisher Floor64. “Rather than advancing online expression, this law will only suppress it, both through its own direct terms and by opening the door to similar legislation from other states to finish crushing what online platforms and expression are left.”

There’s irrefutable evidence Google has been hiding documents in DOJ’s antitrust lawsuit against the company, the government argued Thursday before the U.S. District Court in Washington in docket 1:20-cv-03010 (see 2203240040). DOJ responded to a filing from Google, which denied the company engaged in a “systematic, bad-faith scheme to falsify and hide documents.” Within the past week, after DOJ asked the court to act, Google “produced more than 8,000 documents wrongly withheld under claims of privilege,” the department said. DOJ noted Google was “put on notice about its spurious privilege designations in at least two other legal proceedings,” which hasn’t deterred the misconduct.

The FCC encouraged companies that use uninterruptible power supply (UPS) devices as a primary or backup power source to pay attention to a recent security warning by the Cybersecurity and Infrastructure Security Agency and Department of Energy. “Those agencies have become aware of threat actors gaining access to a variety of internet-connected UPS devices, often through unchanged default usernames and passwords,” the FCC said Thursday. It advised companies to “immediately enumerate all UPSs and similar systems and ensure they are not accessible from the internet” or make sure they have “compensating controls, such as ensuring the device or system is behind virtual private network, enforcing multifactor authentication, and applying strong, long passwords.”

Officials seized Hydra Market, the “world’s largest and longest-running darknet market,” DOJ announced Tuesday. The department said Hydra carried about “80% of all darknet market-related cryptocurrency transactions” in 2021 and has received about $5.2 billion in cryptocurrency since 2015. The German Federal Criminal Police coordinated with U.S. officials in seizing “servers and cryptocurrency wallets containing $25 million worth of bitcoin” in Germany Tuesday, DOJ said. The department announced criminal charges against Russian resident Dmitry Olegovich Pavlov for narcotics and money laundering activity in connection with operation of Hydra servers.

Cross-border e-commerce will be 38% of all online transactions globally by value in 2023, when it exceeds $2 trillion for the first time, reported Juniper Research Monday. The more than 13% growth in a single year to $2.1 trillion in 2023 reflects the increasing success of marketplaces that offer goods across borders, plus the “rising viability” of cross-border sales as an e-commerce model, said Juniper. Physical goods will generate more than 97% of the cross-border e-commerce spend in 2023, it said.