FTC Not ‘Structured to Comport’ With Constitution, Says Meta

It’s “imperative” that a federal agency charged with enforcing the law “is structured to comport” with the Constitution, but the FTC “is not,” said Meta’s reply Wednesday (docket 1:23-cv-03562) in U.S. District Court for the District of Columbia in further support of its motion for an injunction to block the agency from modifying its 2020 privacy consent order with new restrictions on the company’s business activities (see 2311300039). The FTC’s “dual role” as prosecutor and judge “is flatly inconsistent with fundamental principles of due process,” said the reply, which Meta also filed in opposition to the commission’s Dec. 13 motion to dismiss (see 2312140008). The “conflict inherent” in the FTC’s dual role “has materialized in the form of a long history of biased administrative adjudication,” said Meta. That has resulted “in an unbroken, decades-long string of home-turf victories,” which "contrasts starkly" with the the FTC’s “struggling record in judicial actions before neutral adjudicators” in federal courts, it said. The “risk of unfairness” has already manifested itself in the form of the FTC’s “prejudgment of the facts and law,” it said. The “undisputed public record” is sufficient to establish Meta’s likelihood of success on the merits, warranting the grant of injunctive relief, said the company. The FTC’s prejudgment of the facts and the law in the proceeding against Meta “is the latest manifestation of bias,” it said. Based on 1,164 preliminary findings of fact, the FTC has made the formal legal determination that modification of the 2020 order is needed, it said. The agency “has challenged Meta to try to change its mind,” but due process “requires more, much more,” it said.