In Robert Bolt’s play “A Man for All Seasons,” the character of Sir Thomas More argues at one point that he would “give the Devil benefit of law, for my own safety’s sake!” Defending the right to due process for a broadly disliked company is similarly not the most popular position, but nonetheless, even Meta deserves the rule of law.
In recent years, dislike of Meta and Facebook has been bipartisan. Many Democrats despise the company because they believe it has failed to address misinformation on its platforms. Many Republicans hate Meta because of alleged censorship of conservative viewpoints. They also mostly agree that Meta exercises monopoly power, exploits children and violates its users’ privacy.
The company has also faced blowback internationally. In the European Union, privacy concerns about the capacious nature of the U.S. government’s surveillance apparatus has manifested in efforts to penalize U.S. firms like Meta that interact with EU citizens.
In light of all of this anger, it’s no wonder that enforcement agencies are attacking the company with tools at their disposal. The problem is that they seem willing to give up important principles to do so. To paraphrase Sir Thomas More, even in pursuit of the devil himself, the law’s protection of due process is too important to give up.
The Federal Trade Commission’s recent order against Meta is a perfect illustration of government regulators ignoring due process in order to attack a villain of its choosing. In this case, the FTC alleges that Meta violated its 2012 and 2020 consent orders through conduct that nearly all occurred well before the orders were last modified.
On top of the obvious problem of holding Meta accountable now for violating terms of a consent order that did not yet exist, the proposed remedies are considerably more expansive than the underlying allegations would seem to merit.
The FTC’s proposal would restrict Meta’s ability to monetize the data of minors, require an external privacy auditor to sign off before it could release new or updated products, and force the company to add a member to its board’s privacy committee from a nonprofit dedicated to “safeguard[ing] civil liberties” or “strengthen[ing] consumer privacy standards.”
In fact, these remedies are so unusual that one of the FTC’s Democratic commissioners wrote a statement questioning the nexus “between the original order, the intervening violations, and the modified order.”
Meanwhile, across the Atlantic, the Irish Data Protection Commission recently fined Meta a record €1.2 billion for violating the EU’s General Data Protection Regulation. In this case, the alleged crime was that Meta relied on GDPR-authorized standard contractual clauses to transfer personal data about EU citizens to the United States.
The ruling came down despite the fact that the Irish DPC’s draft decision conceded that the data transfers “were being effected, in good faith, under and by reference to transfer mechanisms provided for at law.” Meta and other U.S. firms reasonably relied on this method and supplemented the standard contractual clauses with other protections. It also bears noting that none of these tech firms control U.S. public policy on government surveillance – the issue decided in the EU’s Schrems II case that presumably makes data transfers to the United States impermissible.
In both the FTC and EU cases, Meta appeared to be acting in good faith in response to regulators. As Darth Vader threatened after he broke his word to Lando Calrissian in the “Empire Strikes Back”: “I am altering the deal. Pray I don’t alter it any further.” For Meta, it appears they believed they were following the deal set forth by the relevant authorities, only to find out that the deal was going to be altered. Much like Lando, they can only pray that it won’t be altered any further.
As Sir Thomas More warned, ignoring due process to attack villains may feel good in the short term, but it will leave us all exposed to arbitrary power in the end. In the pursuit of bringing peace, freedom, justice, and security to their empire, enforcers have turned to the dark side.
