Thread by @mabecker17

#TheGambia has filed its reply in US Federal Court to @Facebook’s arguments opposing discovery under §1782 in relation to the #genocide case against #Myanmar at the #ICJ. Here’s a thread summarizing The Gambia’s argument. For Facebook’s argument, see my prior thread (below). 1/17

https://twitter.com/mabecker17/status/1291045314913349633

#TheGambia argues that Facebook wrongly claims its hands are tied by US law, precluding its co-operation. The Gambia’s main argument is that the Stored Communications Act (SCA) (invoked by Facebook) doesn't cover the requests, or, if it does, that statutory exceptions apply. 2/17

First, The Gambia focuses on statutory text to argue that the SCA doesn't apply to foreign governments, its officials or its agents, or to anyone who has engaged in unauthorized use of @Facebook’s platform (i.e., in violation of its own terms). 3/17

According to The Gambia, the statutory history supports this interpretation and shows that Congress did not intend to protect the privacy interests or Fourth Amendment rights of foreign governments/officials (no extraterritoriality). 4/17

Secondly, The Gambia contends that its requests are limited to information that Facebook removed from the platform and preserved, and that the SCA only prohibits divulging communications in ‘temporary electronic storage’ or for purposes of ‘backup protection’. 5/17

According to The Gambia, the fact that Facebook removed content for violating its policies (and made it inaccessible to users) means the requested content is neither in temporary storage nor stored for backup protection (as defined), and thus not subject to SCA protections. 6/17

Thirdly, The Gambia argues that even if the SCA does apply, there are two relevant statutory exceptions that permit @Facebook to disclose the requested materials anyway. #Rohingya #Myanmar 7/17

The first exception (§2702(b)(5)) would, per The Gambia, allow @Facebook to disclose information to protect its own rights or property, which The Gambia suggests means Facebook’s right to protect its own interests by preventing the platform’s misuse for illegal activity. 8/17

The second exception (§2703(b)(3)) permits disclosure by Facebook where a communication was previously made public. The Gambia contends that that no expectation of privacy attaches to material that was publicly posted, which amounts to a waiver/implied consent to disclosure. 9/17

In general, The Gambia’s reply does not deal specifically with whether private communications or drafts on FB that were never made public fall outside the SCA, but it seems to imply that these materials would make up only a tiny slice of the requested material. 10/17

The Gambia then addresses Facebook’s argument that it should seek the requested information through other channels, and that the request is too broad and unworkable. The Gambia gives these arguments short shrift. 11/17

First, The Gambia makes the case that a mutual legal assistance process and the CLOUD Act are cumbersome, and that CLOUD is potentially inapplicable (if SCA doesn't apply). Moreover, The Gambia argues that compliance by Facebook under the CLOUD Act would only be voluntary. 12/17

Secondly, The Gambia rebuts Facebook’s claim that the request isn't narrowly tailored, emphasizing that it seeks material that FB previously identified & acted on. It also asserts that the 2012 timeframe is relevant to proving genocidal intent in relation to 2016-17 events. 13/17

The Gambia also argues that if the Court deems the request too broad, any concerns can be cured, and that privacy concerns could be addressed through a protective order. Since The Gambia’s brief at the #ICJ is due in October, it asks the court act to act quickly. 14/17

My quick take: Based on a first read, several of The Gambia’s textual arguments about the limited scope of the SCA feel strained. I defer to those with SCA expertise, but I have some doubts about whether the Court will accept this narrow reading. 15/17

Also, while pursuing the material through a state-to-state process or the CLOUD Act exception may be cumbersome, it’s not clear that this is in itself a persuasive argument in support of the proposition that the scope of the SCA restrictions should be construed narrowly. 16/17

However, the argument that the SCA doesn’t prevent @Facebook from disclosing public content that it took down (which #TheGambia says ‘forms virtually all of the subpoenaed information’) looks stronger—and may be the clearest path to compelling some disclosure under §1782. -END-