Asserting Constitutional Rights During FTC Probes

Asserting Constitutional Rights During FTC Probes

Dealing with an FTC investigation can be intimidating. Many companies and individuals aren’t aware of their constitutional rights when faced with an FTC subpoena or civil investigative demand (CID). However, you have important due process rights that can protect you during an FTC probe.

Overview of FTC Investigative Powers

The FTC has broad authority to investigate potentially unfair or deceptive trade practices under Section 5 of the FTC Act. This includes the power to issue subpoenas and CIDs to obtain testimony and documents [4]. While companies must comply or face possible enforcement action, individuals have certain constitutional rights they can assert.

Fifth Amendment Right Against Self-Incrimination

The Fifth Amendment protects against self-incrimination in criminal cases. In Axon v. FTC, the Supreme Court recently held that this privilege does not apply broadly to FTC probes [5]. However, if you reasonably fear your statements could expose you to criminal liability, you may still invoke your Fifth Amendment right in response to specific questions. Just refusing to testify or produce documents entirely may not be protected.

How to Assert the Fifth Amendment

• Express your intent to assert the privilege clearly
• Assert it on a question-by-question basis
• Explain your basis for fearing criminal prosecution

Blanket assertions of the Fifth Amendment right may not be upheld. You must tailor your response to the specific risk presented by each question or request. An experienced attorney can help you navigate this process effectively.

Fourth Amendment Protection Against Unreasonable Searches

The Fourth Amendment limits the government’s power to conduct unreasonable searches and seizures. While the FTC has authority to subpoena documents and data, the Fourth Amendment provides some protections:

• Subpoenas cannot be overly broad or burdensome
• FTC must have a reasonable basis for requests
• You may negotiate limits or object to overbroad aspects

If you believe a subpoena or CID exceeds the FTC’s authority or imposes an undue burden, you can petition to limit or quash it. This is complex, so consult an attorney experienced with FTC probes.

Due Process Rights

The Fifth Amendment also guarantees due process rights, like fair notice and a hearing. For example, in Axon, the company argued the FTC administrative process denied due process by combining prosecutorial and adjudicative roles [5]. While Axon lost, due process arguments may succeed in limiting overreach in FTC proceedings.

Potential Due Process Arguments

• Right to fair notice of charges/allegations
• Right to impartial adjudication
• Right to present evidence and confront accusers

Due process rights depend on the stage and nature of proceedings. If you believe the FTC is violating due process, an experienced constitutional lawyer can advise you on objections.

Getting Legal Help

Navigating an FTC probe while protecting your constitutional rights is extremely complex. Do not go it alone. Consult an attorney experienced with FTC investigations to advise you on:

• Responding to subpoenas and CIDs
• Asserting privileges and protections
• Negotiating reasonable limits on requests
• Petitioning to quash overbroad demands
• Raising due process and other arguments

With skilled legal help asserting your rights, you can increase your chances of a fair and reasonable process.