Asserting Constitutional Rights During FTC Interviews

Asserting Constitutional Rights During FTC Interviews

Being interviewed by the Federal Trade Commission can be an intimidating experience. However, it’s important to remember that you still have constitutional rights that can protect you during the interview process.

The Fifth Amendment is one of the most relevant constitutional rights to be aware of. It states that no one “shall be compelled in any criminal case to be a witness against himself.” This privilege against self-incrimination applies to FTC interviews, even though they are civil in nature¹. However, its application was limited in a 2014 FTC opinion².

Here are some key things to know about asserting your Fifth Amendment rights during an FTC interview:

• You can refuse to answer any question that you believe could be self-incriminating. This includes questions about your own conduct as well as questions about the conduct of others that could implicate you.
• If you plan to assert the Fifth Amendment, state out loud that you are refusing to answer based on your Fifth Amendment privilege. Don’t just stay silent.
• Be careful about blanket assertions of the Fifth Amendment. It’s better to assess each question individually and selectively invoke the privilege when needed.
• Asserting the Fifth Amendment cannot be used as the sole basis for any adverse action by the FTC. But it also doesn’t prevent them from continuing to investigate using other means.

In addition to the Fifth Amendment, you also have Fourth Amendment protections against unreasonable search and seizure. This means the FTC generally needs a subpoena or court order to compel you to turn over documents or submit to questioning³.

Here are some other constitutional rights that may apply:

• First Amendment freedom of speech – You have the right to speak openly about the investigation unless a court has issued a gag order.
• Sixth Amendment right to an attorney – You have the right to consult with legal counsel during any part of the investigation.
• 14th Amendment due process protections – The FTC must follow fair procedures and cannot violate your rights to fair treatment.

In April 2022, the Supreme Court ruled that parties under investigation can bring constitutional challenges directly in federal court, instead of going through the FTC’s administrative review process⁴. This opens the door for more robust constitutional defenses earlier in an investigation.

Overall, while the FTC has broad powers to investigate possible violations, knowing your rights is key to asserting valid constitutional defenses when needed. Don’t hesitate to bring up any concerns about violations of your rights during the interview process.

Preparing for the Interview

Here are some tips to keep in mind when preparing for an upcoming FTC investigational hearing or interview:

• Carefully review any FTC Civil Investigative Demand (CID) and discuss it with your attorney. The CID will outline the purpose and scope of the investigation.
• Organize any relevant documents and make sure you understand what the FTC is looking for. You may need to produce certain documents.
• Refamiliarize yourself with the details of any matter the FTC is investigating. Create a timeline of key events and refresh your memory on specifics.
• Coordinate with others who may be interviewed to ensure your facts are consistent. But avoid any appearance of impropriety.
• Develop a plan for asserting your constitutional rights with your legal counsel.
• Get a good night’s sleep and eat a healthy meal before the interview.

Having an experienced legal team to help prepare is highly recommended. But make sure you understand your rights yourself as well.

What to Expect During the Interview

FTC interviews typically follow a standard structure, with some variations:

• After introductions, the FTC will explain the nature of the investigation and your duty to cooperate fully and truthfully.
• They will read a statement about your Fifth Amendment rights against self-incrimination.
• The interview will start with basic background questions about you and your company’s business.
• They will ask about your specific involvement in any matters under investigation. Expect detailed questions.
• You will likely be asked to explain relevant documents, emails, and other evidence they’ve collected.
• They may share information from past interviews or evidence and ask you to comment or respond.
• The interview will be recorded. You can request a copy of the full transcript.

Remember, you have the right to ask for a break at any time. You also have the right to speak with a lawyer if you need to during the interview.

Here are some tips for handling the interview itself:

• Always tell the truth. Lying or obstruction of justice leads to criminal liability.
• Listen carefully to each question before answering. Ask for clarification if anything is unclear.
• Keep your answers concise, factual, and directly responsive to the specific question.
• Be cooperative, but don’t speculate or volunteer information that wasn’t asked for.
• It’s okay to say “I don’t know” or “I don’t recall” if you legitimately don’t know or remember the answer.
• Avoid getting defensive or confrontational with the FTC lawyers.

With preparation and focus, you can get through an FTC interview while protecting your rights.

After the Interview

Once the interview is over, there are still a few important steps to take:

• Request a copy of the interview transcript and review it carefully with your lawyer.
• Begin compiling documents or additional evidence requested by the FTC during the interview.
• Discuss any new areas of concern with your lawyer that came up during the interview.
• Evaluate your legal strategy going forward now that you have a better sense of the FTC’s approach.
• Continue cooperating with the investigation, but be vigilant about asserting your rights.

The FTC process often takes months or even years to unfold after the initial interview. Remaining engaged, cooperative, and constitutionally protected will serve you well as the investigation continues.

With preparation, knowledge of your rights, and the assistance of counsel, an FTC investigational hearing does not have to be an overwhelming experience. You have protections under the law. Carefully asserting your constitutional rights can help ensure a fair process with the best possible outcome.

References

1. https://www.federallawyers.com/criminal-defense/asserting-constitutional-rights-during-ftc-probes-3/
2. https://www.federallawyers.com/criminal-defense/asserting-constitutional-rights-during-ftc-probes-3/
3. https://consumer.ftc.gov/articles/employer-background-checks-your-rights
4. https://www.davispolk.com/insights/client-update/supreme-court-allows-upfront-constitutional-challenges-ftc-and-sec