Opinion | The FTC’s Facebook Secrecy

The agency says the market doesn’t include YouTube,

Twitter,

Reddit and TikTok, though Meta competes with them for user time and advertising revenue. Meta says it can’t defend itself against a monopoly accusation if it doesn’t know what it is defending against, and it has a point. The FTC is trying to gerrymander a market, as it often does in antitrust suits, without defining the market’s boundaries.

The FTC is also refusing to produce eight documents from staff attorneys and economists related to its reviews last decade of Meta’s Instagram and WhatsApp acquisitions. These documents almost certainly contain facts and analysis regarding how the agency believed the deals would affect the competitive landscapes at the time.

Meta argues the documents are critical to its defense and this month filed a motion to compel the FTC to hand them over. The FTC responded last week that the documents are protected by “deliberative process” privilege and are “not necessary to illuminate the real issue in this case, which is Meta’s unlawful maintenance of monopoly power.”

Federal agencies sometimes invoke deliberative process privilege to shield records relating to rule-makings from Freedom of Information Request Act (FOIA) disclosures. But there’s little precedent for an agency to invoke this shield a decade after a regulatory deliberation, let alone during discovery in a lawsuit that it brought.

If the documents are so sensitive, why did the FTC hand them over to the House Judiciary antitrust subcommittee investigating tech companies in 2019? The committee’s majority report refers to the FTC’s voluntary production of the documents, but Meta can’t see them.

Meta and the federal court overseeing the case are supposed to trust the FTC’s judgment that the documents don’t include anything of interest or import to the company’s defense. But why is the agency fighting so hard to shield the documents? Under the law, prosecutors can’t withhold potentially exculpatory evidence from defendants.

The FTC has essentially reversed its long-ago merger decisions, which the company thought allowed it to invest and grow. The company and the public deserve to know what substantively has changed in the agency’s analysis, or to wonder if this is merely a change because Facebook is now politically unpopular. Whatever Meta’s political sins, this is about the rule of law.