15 Sep 23

Asserting Constitutional Rights During FTC Probes

| by

Last Updated on: 2nd October 2023, 05:51 pm


Asserting Constitutional Rights During FTC Probes

Being investigated by the Federal Trade Commission can be an intimidating and stressful experience. While the FTC has broad authority to investigate potential violations of antitrust and consumer protection laws, companies and individuals still have important constitutional rights that can protect them during an investigation.

This article provides a helpful overview of how you can assert your constitutional rights if you find yourself or your company under investigation by the FTC. We’ll cover the key laws and legal precedents, discuss implications and defenses, and provide tips from legal experts on how best to navigate an FTC probe.

The FTC’s Investigative Powers

The FTC’s authority to investigate potential violations comes from several laws, mainly:

  • Sections 6, 9, and 20 of the FTC Act
  • Section 7A of the Clayton Act
  • International Antitrust Enforcement Assistance Act

These laws allow the FTC to use various forms of compulsory process to obtain information during investigations. This includes:

  • Issuing subpoenas to require documents, testimony, and other evidence
  • Administering oaths and examining witnesses
  • Seeking information through civil investigative demands (CIDs)
  • Issuing special orders to obtain additional data

While this investigative power is substantial, the FTC cannot simply demand information without limit. There are important constitutional principles that restrict what the FTC can do during an investigation.

Constitutional Protections and Rights

The U.S. Constitution provides several key protections that apply during an FTC probe:

1. Fourth Amendment

The Fourth Amendment protects against unreasonable searches and seizures. This requires FTC subpoenas, CIDs, and other requests for information to not be overly broad or burdensome. There must be a reasonable basis for demanding the information sought.

2. Fifth Amendment

The Fifth Amendment provides protection against self-incrimination. Individuals have the right not to provide testimony or evidence that could implicate them in criminal activity. This privilege applies in both civil and criminal contexts.

3. Due Process

The Fifth Amendment also guarantees due process of law. This gives companies and individuals the right to fair notice and an opportunity to be heard when challenging the FTC’s actions and assertions during an investigation.

LEARN MORE  SNAP Permanent Disqualification Reversal Lawyers

Key Legal Precedents

There are several notable court cases that have helped define the scope of constitutional rights in FTC probes:

Axon Enterprise v. FTC

This recent 2022 Supreme Court case upheld the right of a company (Axon) to sue in federal court to challenge the constitutionality of an FTC administrative proceeding on separation of powers grounds.

LabMD v. FTC

In this 2016 case, the court ruled that an FTC subpoena violated a company’s (LabMD) Fourth Amendment rights because it demanded excessively broad information based on thin allegations.

In re LabMD, Inc.

A 2014 FTC opinion that limited the application of the Fifth Amendment privilege against self-incrimination in civil cases to only natural persons, not corporations.

Practical Tips for Asserting Your Rights

If you’re involved in an FTC investigation, here are some practical tips for making sure your constitutional rights are protected:

  • Carefully review any FTC subpoena or CID and object to overly broad or unduly burdensome requests.
  • Invoke your Fifth Amendment right against self-incrimination when applicable.
  • Petition the FTC for an order modifying or quashing an administrative subpoena if it violates your rights.
  • Hire experienced legal counsel to advocate for your rights.
  • If necessary, sue in federal court to challenge unconstitutional FTC actions.

It’s important to act promptly when asserting constitutional defenses against an FTC investigation. Don’t simply comply with an unlawful subpoena – get help from a lawyer to challenge it.


The FTC has broad powers to investigate potential wrongdoing, but companies and individuals retain important constitutional rights during investigations. Understanding your protections under the Fourth and Fifth Amendments, due process, and other principles is key to safely navigating an FTC probe.

Challenging an unlawful subpoena or other FTC overreach may seem daunting, but legal precedents and the Constitution offer a strong basis to push back when necessary. With the help of experienced counsel, you can assert your rights and achieve the best possible outcome in an FTC investigation.