Meta Sues FTC to Block New Privacy Restrictions Involving Children’s Data

A person uses a smartphone to watch Facebook CEO Mark Zuckerberg unveil the META logo in Los Angeles on Oct. 28, 2021. Chris Delmas/AFP via Getty Images

Meta, formerly known as Facebook, is suing the U.S. Federal Trade Commission (FTC) in a bid to block the agency from expanding a 2020 privacy order.

In May, the FTC alleged that Meta had failed to comply with a 2020 privacy order and proposed expanding its scope to prohibit the company from monetizing the data of children and teens. On Nov. 27, a Washington federal court ruled that FTC can move ahead with modifying the order.

In response, the company filed a lawsuit at the same court on Nov. 29, asking it to “permanently” prohibit such FTC proceedings.

The FTC determined in May that Meta violated the 2020 order that mandated that Facebook implement “greater security for personal information, and imposed restrictions on the use of facial recognition and telephone numbers obtained for account security.”

The agency also found that the company violated the Children’s Online Privacy Protection Rule.

Facebook “misled parents about their ability to control with whom their children communicated through its Messenger Kids app, and misrepresented the access it provided some app developers to private user data,” the agency stated.

An independent third-party assessor tasked with evaluating Facebook’s commitment to the 2020 order identified “several gaps and weaknesses” in Meta’s privacy program, which it claimed poses “substantial risks” to the public.

Based on the assessment, the FTC proposed the following modifications to the 2020 privacy order:

• A provision implementing “strict restrictions” on how Meta can use information collected from users under the age of 18. Meta will be allowed to collect a minor’s information only to provide the service and for security purposes. The company would be barred from monetizing such information or using it for commercial gain.
• A prohibition on releasing any new or modified product or service until the company shows that its compliance with the privacy order “has no material gaps or weaknesses.”
• User protections for Meta’s facial recognition feature.
• A requirement to obtain a user’s “affirmative express consent” for any changes the company makes to data practices.

It was in pursuit of these modifications that the FTC approached the court and eventually received approval.

Meta called the FTC’s proposed expansion of the 2020 privacy order a “political stunt.”

“It’s a clear attempt to usurp the authority of Congress to set industry-wide standards and instead single out one American company while allowing Chinese companies like TikTok to operate without constraint on American soil,” Meta said in a May 3 press release.

“Pursuing actions like this with little or no engagement with companies about what their concerns are and without any indication of non-compliance before seeking to unilaterally reopen a negotiated Order, sends a chilling message to all American businesses about how to work with the FTC productively on these very important issues.”

‘Unconstitutional’ Overreach

In the lawsuit, Meta challenged the “structurally unconstitutional authority” exercised by the agency on the matter.

Meta argued that the FTC is structured in such a way that it plays a “dual role as prosecutor and judge.” The company says that’s a violation of the Fifth Amendment’s due process clause, which requires that adjudication on an issue be made by an unbiased judge and an impartial jury.

Under the FTC Act, “the Commission (as prosecutor) initiates an administrative enforcement proceeding by voting to initiate it and (as judge) decides the matter, including through factual findings and legal determinations.”

This dual role is “especially egregious” since the “Commission already has, before hearing from Meta, prejudged the matter by formally determining ... that ‘modifications to the [2020] Order are needed,’” Meta said.

The FTC proposal would “unilaterally modify the terms of the 2020 Order” and infringe on Meta’s property rights, including by dictating how and when the company can design its products. The commission’s adjudication of the issue would deny Meta the right to trial by jury, the lawsuit stated.

Meta pointed out that the firm has taken all necessary steps to comply with the 2020 order. But now, the FTC is seeking to change the terms in an “obvious power grab.”

Even before Meta has a chance to respond to the FTC’s latest allegations, the commission is already pushing for modifying the 2020 order, thus dismissing “any semblance of an unbiased review,” the company argued.

“The harm to Meta if it were forced to respond would be immediate and irreparable. The mere subjection to an illegitimate proceeding by an illegitimate decision maker is sufficient harm to warrant an injunction.”

The company asked that the court declare that FTC’s proceedings against Meta and its dual role as prosecutor and judge violated the due process clause of the Fifth Amendment.

The privacy order from 2020 was the result of Facebook’s violating a privacy order from 2012 that had barred the company from misrepresenting its privacy practices.

However, Facebook violated this order “within months of it being finalized—engaging in misrepresentations that helped fuel the Cambridge Analytica scandal,” according to the FTC.

The 2020 order resolved the 2012 violations and expanded the privacy regulations applicable to Facebook.

Neither Meta nor FTC officials responded by press time to a request by The Epoch Times for comment.