I’m Pretty Sure the FTC’s New Document Seizure (er Preservation) NPRM Is Unconstitutional

May 21, 2022

So I have about 100,000 things I should be doing right now but my little wheels are turning and I figured I’d share these thoughts–half-baked though they are–with TCPAWorld before I forget.

The FTC just issued an NPRM requiring marketers to hold on to records–tons of records. All of the outbound calls they’ve made. Copies of consent records (or the lack thereof). Basically anything a PROSECUTOR could ever want to use against a caller in a criminal case.

How is that supposed to make lawful marketers feel? They’re basically being told to hold onto every record of their activities in case the government wants to come snooping into it one day.

I have to say I view this as a government agency basically just picking on a group of Americans who are politically unpopular right now just because it can. Just because a company engages in direct-to-consumer marketing doesn’t mean they’re a criminal enterprise. And I’m not sure they should be presumptively treated as one. Especially since I know a lot of these good folks who try their level best to comply with the law while also trying to make a living.

I don’t like how this NPRM treats these good folks. I don’t like it at all.

And I get it, wrongdoers should be prosecuted. Except that we all have the right to be secure in our possessions against unwarranted searches and seizures. And we have the right to not testify against ourselves. And–most importantly–we have the right not to be treated as wrongdoers until we actually do something wrong.

If the government has probable cause to seize my records because I have committed a crime (or there is probable cause to believe that I have) well, my records are going to get seized. But it can’t seize my records–or, in my view–require me to seize my own records for their convenient production on a later date–simply because it thinks I might do something wrong in the future. Or simply because I’m engaged in a profession that other people misuse.

Breaking this down a bit more, the case law is pretty clear that being compelled to produce business records that were voluntarily created is not a fifth amendment issue. A business has no fifth amendment rights (for some reason) and a person cannot (again, for some reason) assert a privilege against business records even where they are in their possession. (Unless the act of production is, itself, testimonial–which it sometimes can be.)

The limits on the protection against unwarranted searches and seizures are a bit less clear in this context, though.  For instance, the warrantless obtaining of cell phone location data was too much for the Supreme Court to handle back in the old Carpenter case. The rationale was that if cell phone location data were wide open to government use the government would essentially have a 4 year look back on the whereabouts of every American. It could then pick and choose who to observe, whenever it saw fit to do so.

When I reflect on the FTC’s new document retention protocol, this feels a lot like Carpenter to me. You have the government essentially mandating a hold on every record of outbound calling–completely lawful conduct, btw. That is unquestionable a form of seizure. The documents must be housed in ready condition for the government to come pick them up on demand. Presumably, the retrieval will require a warrant–that part isn’t clear to me yet–but isn’t the warrantless requirement that documents remain seized (albeit in someone else’s possession) itself a violation of the fourth amendment?

And when you combine these concerns with the Fifth Amendment protections against self incrimination–that, again, barely exist in this context–it almost feels like the government is intentionally setting up a trap here. Like everyone who engages in telemarketing (including lawful telemarketing) is now going to be subject to intensive/complete government review at any given moment. They are forced to maintain records, only to be forced to produce those records at the whim of a government official one day.

Now I’m not saying the bad guys should get away. But usually, prosecutors should have to prove their case without requiring criminals to testify against themselves (including by forcing them to hold on to all of the evidence of their activities over a multi-year period of time so that they can hand it over one day.)

And the thing that really bothers me is how direct the FTC is in its approach here. It literally argues that the record retention rules are necessary to assist law enforcement efforts. There’s so subtlety. Its not like there’s an argument that there’s some other reason that the records should be maintained other than those that might trample constitutional rights. The FTC is literally directing marketers to hold onto their records for the express purpose of potentially having to testify against themselves (in the actual non-legal sense of those words) by producing the records to law enforcement down the line.

Essentially its just going to treat all marketers like criminals. And hey, if you’re not doing anything wrong you’ve got nothing to worry about right?

The cry of an authoritarian regime.

I grant you I am only a nationally-recognized scholar on the First Amendment, and not the Fourth or Fifth. So there’s probably a bunch of subtlety here I’m missing (or perhaps, ignoring because I don’t like it.) But there’s something to this argument.

Intuitively, the government can’t force you to keep all records of your (lawful) conduct and then demand its production later on the off chance you did something wrong. That’s not a free society. Not even close.

At a minimum, the ruling should specify that government officials cannot take possession of records seized.. er, retained by businesses under the rules without a warrant. That has to be in there. It just has to be.

Anyway, I leave this to you TCPAWorld to run with. I can’t take the lead on this one. Have too many other projects right now.  Go fight the good fight. Thanks.

© 2022 Troutman Firm
National Law Review, Volume XII, Number 141
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