Gus Hurwitz on Cases To Watch In 2024

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Law360 about major cybersecurity and privacy cases to watch in 2024. You can read full piece here.

“The FTC has decided to go for the jugular against Meta, and Meta is going for the jugular against the FTC,” Gus Hurwitz, the director of law and economics programs at the International Center for Law & Economics, said.

…The dispute reflects a broader shift in the relationship between the FTC and Big Tech, which until recently has been a largely “cooperative” one, with companies typically choosing to settle with the commission rather than fight its charges in legal proceedings, Hurwitz noted.

“Meta’s challenge really encapsulates how that relationship has fallen apart,” he said. “The current FTC seems to have decided that they don’t want to play that game any more and instead want to be more aggressive in pushing the boundaries of their authority, and when that happens, regulated companies like Meta are going to change their strategy as well.”

If Meta is successful in its constitutional challenge, the result would decimate the administrative process that the FTC regularly uses to adjudicate not only data privacy disputes but also the antitrust, consumer protection and data security matters it has authority over, likely making it harder for the FTC to extract settlements but requiring its complaints to be filed directly with the courts rather than be heard in-house, Hurwitz said.

The dispute could also end up drawing interest from the Supreme Court, which over the past decade has shown a keen interest in administrative law issues, according to Hurwitz, who noted that Meta’s new complaint was filed on the heels of the high court hearing oral arguments in U.S. Securities and Exchange Commission v. Jarkesy, which challenges the constitutionality of the SEC’s in-house courts.

The Supreme Court’s conservative majority seemed poised during arguments to declare that in-house proceedings like the ones overseen by the SEC’s administrative law judges deprive defendants of their Seventh Amendment right to a jury trial, and Hurwitz said he’ll be watching to see how those proceedings impact Meta’s similar challenge.