Thread by @mabecker17

UPDATE: In the ongoing litigation between #TheGambia and @Facebook in the US, The Gambia has submitted its response to FB’s surreply (meaning that the application for an order compelling discovery under §1782 has now been fully briefed). Here’s a rough summary: 1/12

Recall that Facebook’s position is that the Stored Communications Act, a US privacy law, would prevent it from being able to comply lawfully with the request for documents that #TheGambia seeks (including posts by #Myanmar officials & affiliated groups that FB removed). 2/12

#TheGambia takes a dim view of @Facebook’s arguments about the dangerous precedent this could set for privacy rights & argues that Facebook should want ‘genocidal conspirators who have abused Facebook’s platform’ to know their communications will not be protected. 3/12

#TheGambia reiterates its core position that the SCA's plain meaning poses no bar to the issuance of the subpoena because it does not apply to the communications that #TheGambia seeks to have turned over for use in the #ICJ case against #Myanmar re genocide. 4/12

Among other arguments, #TheGambia doubles down on its statutory interpretation arguments, including that the SCA definition of ‘users’ does not encompass foreign officials & that the SCA does not protect communications in violation of Facebook’s terms and services rules. 5/12

In response to @Facebook’s argument that it cannot be correct that any and every minor terms & services violation removes SCA protections, #TheGambia argues that this isn’t a concern where violations are egregious (but it cites no law for making this distinction). 6/12

A more interesting argument may be what ‘electronic storage’ means under the SCA & whether 'back-up protection' is the same as 'post-transmission storage'. This line of argument suggests a path towards disclosure of public posts that Facebook took down. 7/12

#TheGambia argues that @Facebook concedes that users don't have SCA protection for communications that were previously public. I think this mischaracterizes FB's position, but it highlights that entirely private communications & public posts that FB took down are different. 8/12

Finally, #TheGambia emphasizes that the SCA does not bar the issuance of a lawful civil subpoena & that the law cannot mean that it is entirely within Facebook’s discretion to withhold from disclosure even materials that the user previously released to the general public. 9/12

#TheGambia reiterates its argument that the Court may issue a lawful subpoena where a user has consented to disclosure by configuring social media postings public, posting to large public audiences, and expressly consenting to disclosure of private communications. 10/12

So a key issue is whether public posts by #Myanmar officials that @Facebook removed are entitled to any SCA protection. It’s plausible that private communications in FB’s possession enjoy more protection & could only be disclosed through different legal channels. We’ll see. 11/12

At this stage, the court should be in a position to render a decision (unless the judge decides to hold a hearing to go into specific points). Here’s a 2017 profile of the very experienced US Magistrate Judge hearing this matter. 12/12 bustle.com/p/who-is-judge… #Rohingya