Meta Asks D.C. District Court for Declaration That FTC Is 'Unconstitutional'

Meta seeks a permanent injunction from the U.S. District Court for the District of Columbia enjoining the FTC, Chair Lina Khan and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya from modifying the agency's 2020 privacy consent order with new restrictions on Meta’s business activities. Meta’s complaint late Wednesday (docket 1:23-cv-03562) asked the court to declare that “fundamental aspects” of the FTC’s structure violate the Constitution, and these violations “render unlawful” the FTC’s proceeding against Meta.

The complaint comes days before Meta’s Dec. 11 deadline to respond to the FTC’s May 3 order to show cause why the commission shouldn’t modify the 2020 consent order and enter the new restrictions. The show cause order said the FTC has reason to believe Meta failed to establish and implement an effective privacy program as the 2020 consent order mandated.

The several new restrictions proposed in the show cause order include a “pause” on new products and features. The show cause order said the FTC wants to prohibit Meta from releasing a new or modified product, service or feature until it can demonstrate, through written confirmation from a qualified, independent third-party “assessor,” that its privacy program fully complies with FTC mandates “and has no material gaps or weaknesses.”

Meta’s complaint doesn’t seek to “litigate the merits” of the FTC’s accusations and findings but to challenge the constitutionality of the agency’s “five structural characteristics” that render its actions against Meta “unconstitutional,” according to the lawsuit. The FTC is structured so that in “administrative adjudications,” including the proceeding against Meta, it “has a dual role as prosecutor and judge,” in violation of the due process clause, the lawsuit said.

FTC commissioners also exercise executive authority while being “unconstitutionally insulated from removal” by the president, said Meta’s complaint. Congress also has delegated to the FTC power to assign disputes to administrative adjudication rather than litigating them before an Article III court, in violation of Article I of the Constitution, it said.

The FTC also adjudicates private rights in violation of Article III, said Meta’s complaint. The FTC’s proposed modifications of the 2020 order “would dictate how and when Meta can design its products,” it said. The Constitution “requires that these private rights be adjudicated by an Article III court,” it said. The FTC’s adjudication “in a proceeding that affords Meta no right to a trial by jury” also violates Meta’s Seventh Amendment protections, it said.

Meta’s lead counsel in the case is James Rouhandeh, from the New York office of Davis Polk.

Meta’s complaint drew a sharp rebuke Thursday from Rep. Frank Pallone, D-N.J., ranking member on the House Commerce Committee. “This lawsuit is embarrassing,” Pallone said in a statement. "It speaks volumes that Meta would rather launch a frivolous lawsuit against the agency tasked by Congress with protecting American consumers, especially our children, than do the serious work needed to reform their platforms,” he said. Pallone categorized the complaint as “a stunt intended to distract from the serious concerns regarding Meta's social media platforms and business practices.”