Twenty-eight US states and the District of Columbia filed a joint amicus brief on Friday in the US Court of Appeals for the DC Circuit, throwing their collective legal weight behind the Federal Trade Commission's appeal of a November 2025 ruling that cleared Meta Platforms of illegally monopolizing social media. The multistate filing, which arrived just eight days after Texas separately sued Meta alleging that WhatsApp's core privacy promise is false, marked a convergence of legal pressures on the same two platforms — Instagram and WhatsApp — that together define the reach of Meta's social media empire.
The timing is not coincidental. The antitrust appeal asks whether Meta can be forced to spin off platforms it acquired over a decade ago. The Texas encryption lawsuit asks whether those same platforms have been lying to 3.3 billion users about the most fundamental protection they offer. Both cases trace the same root question: what consequences follow from acquiring competitors and then running them in ways that harm the people who use them.
WhatsApp Privacy Promises, and What Texas Alleges Meta Actually Did
WhatsApp was acquired by Facebook in 2014 for approximately $19 billion. At the time, WhatsApp's founders, including co-founder Jan Koum, publicly promised users that the acquisition would not change how the platform handled their data. In April 2016, Meta made WhatsApp's end-to-end encryption the platform's default, implementing the Signal protocol — a move widely praised by privacy researchers as a genuine technical achievement. Messages encrypted with the Signal protocol can, in principle, only be read by the sender and recipient; no one else, including WhatsApp or Meta, can access them.
Within months of that rollout, however, Meta began reversing the data-privacy commitments that had been part of WhatsApp's original appeal. In August 2016, WhatsApp updated its terms to allow user data — including phone numbers and usage metadata — to be shared with Facebook for advertising targeting, a direct reversal of promises made during the acquisition. The Electronic Privacy Information Center and the Center for Digital Democracy filed a joint complaint with the FTC, accusing Meta of an "unfair and deceptive trade practice" and characterizing the reversal as a "bait-and-switch." The FTC sent a warning letter stating that any material changes to WhatsApp user data practices required express user consent.
Texas Attorney General Ken Paxton filed a lawsuit on May 21, 2026, under the Texas Deceptive Trade Practices Act, alleging that WhatsApp's encryption promise itself was always false. The complaint's core allegation is specific: Meta allegedly stored WhatsApp messages in unencrypted form and operated a tiered internal "task" system through which employees and contractors could submit requests to access private message content, with those requests reportedly processed with little scrutiny. "WhatsApp and its parent company, Meta, have access to virtually all of WhatsApp users' purportedly 'private' communications," the lawsuit states. The filing draws on whistleblower accounts and a Commerce Department investigation cited in the complaint. A March 2026 federal class-action filed in the Northern District of California made substantially the same allegations, naming Meta contractor Accenture.
Meta denied both suits, calling the Texas claims "categorically false and absurd" and stating that WhatsApp has used the Signal protocol for over a decade and that messages cannot be read by anyone other than sender and recipient.
How WhatsApp's Co-Founder Described What Meta Did to Its Users
The encryption lawsuit lands with additional force because of remarks made years earlier by WhatsApp co-founder Brian Acton. Acton sold WhatsApp to Facebook and left Meta in 2017 after disputes over advertising and the commercialization of user data. In a September 2018 interview with Forbes, Acton made an admission that has followed the platform ever since: "At the end of the day, I sold my company. I sold my users' privacy to a larger benefit. I made a choice and a compromise. And I live with that every day." Acton's departure cost him an estimated $850 million in unvested stock. He subsequently co-founded Signal, now widely regarded by security researchers as the most privacy-protective major messaging platform available to general users.
Meta's relationship with encryption has remained inconsistent. On May 8, 2026, Meta removed the optional end-to-end encryption feature from Instagram direct messages — a feature it had publicly committed to expanding across its platforms since 2019 — citing low adoption rates. Privacy researchers noted that the feature had never been made the default, and that burying its activation behind multiple steps made low adoption a predictable outcome rather than a justification for removal. Meta directed users who wanted encrypted messaging to switch to WhatsApp — the same platform now under legal challenge over whether its encryption promises are genuine.
FTC and Meta: A Decade of Privacy Enforcement Before Antitrust
The FTC's antitrust case, filed in December 2020, did not emerge in isolation. It followed more than a decade of escalating federal enforcement against Meta over privacy practices directly connected to the platforms whose ownership is now in dispute.
In 2019, the FTC imposed a $5 billion settlement on Facebook — at that time the largest civil penalty the agency had ever assessed — for violations of a 2012 consent order. The core finding was that Facebook had repeatedly misled users about their ability to control who accessed their personal data, including in connection with the Cambridge Analytica scandal. The 2019 settlement order explicitly extended oversight to WhatsApp and Instagram, requiring that Meta's privacy compliance program cover all platforms it owned. That provision meant any future privacy misconduct at WhatsApp would fall directly under an existing federal enforcement framework.
The FTC filed its antitrust suit the following year. Its central theory was that Meta's 2012 acquisition of Instagram and 2014 acquisition of WhatsApp were driven not by a desire to build better products but by a documented strategy to eliminate nascent competitors before they could challenge Facebook's dominance. Mark Zuckerberg had described Instagram's emergence in internal communications as "really scary." The FTC alleged that the combined effect was an illegal monopoly in personal social networking, maintained through acquisition rather than competition. A European antitrust authority had already fined Meta in 2017 for providing inaccurate information about the WhatsApp acquisition during its original regulatory review — a finding that informed the FTC's own investigation into what Meta had disclosed when both deals were cleared.
What the 29 Jurisdictions Are Now Arguing
The November 2025 ruling at the center of the appeal came from Chief Judge James Boasberg, who concluded that the FTC had failed to prove Meta currently holds monopoly power. His 89-page Memorandum Opinion found the FTC's proposed market — which excluded TikTok and YouTube — was unduly narrow. More critically, Boasberg applied Section 13(b) of the FTC Act to require that the commission prove a current or imminent violation at the time of verdict, not at the time the complaint was filed in December 2020.
The FTC's formal appeal brief, filed May 22, challenged that interpretation directly. The agency argued that "no other court has held, as the district court did here, that Section 13(b) requires the commission to prove a violation at the time the court reaches a decision on the merits." In the FTC's view, Boasberg's reading "conflates remedial questions with merits issues" and would produce "illogical and damaging consequences" — including eliminating the ability to remedy past violations that continue to cause competitive harm.
The 29 jurisdictions sharpened that argument in their brief. Liability must attach to conditions that existed when the complaint was filed, the states argued, not conditions that survive the full duration of litigation. "Establishing liability at the time of filing of the complaint deters anticompetitive conduct by would-be wrongdoers, even if no equitable remedy is deemed necessary," the brief states. Without that standard, the states warned, the ruling would "fragment State and FTC competition enforcement by requiring different standards for establishing antitrust liability, which will squander law enforcement and judicial resources."
The implications extend well beyond Meta. If the DC Circuit affirms Boasberg's standard, technology companies that acquire competitors and wait through years of litigation may effectively be immunized by the passage of time. If the court endorses the states' reading, regulators gain a durable tool for pursuing historical acquisition cases — a significant development given the volume of artificial intelligence company mergers now attracting regulatory scrutiny.
Cornell Law professor Erik Hovenkamp, who analyzed the case, noted that even a winning appeal would not end the litigation: the FTC would still need to prove on remand that Meta's conduct is currently harming competition, a challenging bar given TikTok's growth. The American Economic Liberties Project, a progressive antitrust advocacy organization, characterized Meta's acquisition strategy as one designed to neutralize competitive threats rather than compete on the merits. Meta, for its part, maintained that the court's decision "recognizes the fierce competition we face."
What Is at Stake for Instagram, WhatsApp, and Their Users
The specific legal stakes for Meta are a possible court order requiring it to divest Instagram or WhatsApp — a remedy that would rank among the most consequential forced corporate restructurings in American technology history. During the trial, Jasmine Enberg, a principal analyst at Emarketer, noted that Instagram alone accounts for approximately 50% of Meta's US advertising revenue and has been the platform's primary growth engine among younger demographics. Any divestiture would, in Meta's own terms, be an existential restructuring.
For users, the stakes run deeper. The antitrust case was framed by the FTC around competitive harm — higher ad loads, weaker innovation, fewer meaningful alternatives. The Texas encryption lawsuit frames the harm more directly: 3.3 billion people were told their messages were unreadable by anyone except the intended recipient. If those people made decisions — medical disclosures, legal consultations, sensitive personal conversations — based on that assurance, and the assurance was false, the harm is not abstract. It is the product of the same acquisition strategy that the antitrust case was designed to challenge.
The DC Circuit will receive briefs from all parties, including Meta's response. Oral arguments have not yet been scheduled. Legal observers consider it likely that the eventual ruling — whichever way it falls — will be appealed further, with a plausible path to the Supreme Court.
Frequently Asked Questions
What is the FTC's antitrust case against Meta about?
The Federal Trade Commission sued Meta in December 2020, arguing that the company illegally maintained a monopoly in personal social networking by acquiring Instagram in 2012 and WhatsApp in 2014 to eliminate potential competitors rather than compete against them. The agency sought a court order requiring Meta to spin off both platforms. A federal judge ruled in Meta's favor in November 2025, concluding that the FTC had not proved Meta currently holds monopoly power, given competition from TikTok and YouTube. The FTC is now appealing that ruling to the DC Circuit, backed by 29 jurisdictions.
Is WhatsApp end-to-end encryption actually private?
Meta maintains that WhatsApp's end-to-end encryption, based on the open-source Signal protocol, is robust and prevents anyone outside a conversation from reading messages. A Texas lawsuit filed May 21, 2026, and a March 2026 California class-action both allege otherwise — that Meta operates an internal system allowing employees and contractors to access private message content on request, directly contradicting WhatsApp's stated guarantee. Meta called the Texas claims "categorically false and absurd." Cryptographer Matthew Green noted the allegations are plausible in the context of cloud backups and business messaging, and that WhatsApp's own disclosures acknowledge categories of data that fall outside the encryption guarantee.
Will Meta be forced to sell Instagram or WhatsApp?
Not yet, and not without further litigation. The FTC is appealing the November 2025 ruling, backed by 29 jurisdictions. Even if the DC Circuit sides with the FTC on the legal standard question, the agency would still need to prove on remand that Meta's conduct is currently harming competition — a high bar given how much the social media landscape has shifted since the original acquisitions in 2012 and 2014.
What states backed the FTC in this appeal?
Twenty-eight US states and the District of Columbia filed a joint amicus brief on May 29, 2026, in the DC Circuit. The brief argued that the district court applied the wrong legal standard by requiring the FTC to prove a current or imminent antitrust violation at the time of the verdict, rather than at the time the original complaint was filed in 2020. Without that correction, the states argued, companies could avoid liability for anticompetitive acquisitions simply by waiting out the litigation.
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