Thread by @mabecker17

Update in #TheGambia v Facebook litigation in the US, where @Gambia_MOJ seeks a court order compelling Facebook to disclose various materials re #Myanmar. The Court has allowed another round of briefing, and @Facebook has filed a sur-reply. Here's what's happening. #Rohingya 1/11

Facebook argues that The Gambia’s application under §1782 asks for a subpoena with which Facebook could not lawfully comply. Recall that The Gambia seeks disclosure of posts by Myanmar officials & affiliated groups that FB has removed, plus drafts & private communications. 2/11

Facebook receives 1000s of requests from foreign gov'ts seeking user communications & it relies on the Stored Communications Act (SCA) to process them. FB says The Gambia’s approach would allow foreign gov'ts to obtain information about users w/out any legal process at all. 3/11

Facebook also argues that all of The Gambia’s arguments would erode privacy protections for billions of internet users, based either on the nationality of the user or the party seeking disclosure, or on unrelated decisions by the entity storing the requested communications. 4/11

Importantly, Facebook says it’s working with the #IIMM to disclose materials in a manner consistent with US law, and it began voluntarily producing info to the IIMM last week. It also says that The Gambia can ask the IIMM to share those materials for use in the #ICJ case. 5/11

As I observed previously, The Gambia’s interpretation of the SCA and its exceptions felt ‘strained’ (see

https://twitter.com/mabecker17/status/1296070477098749955?s=20

). @Facebook has now taken a more forensic approach to explaining why those interpretations do not stand up in light of case law & plain language. 6/11

I won’t go through all of Facebook’s arguments about statutory interpretation here, but FB’s lawyers pick apart several of The Gambia’s arguments about the limited scope of the SCA and the breadth of its exceptions. On several fronts, these arguments are pretty effective. 7/11

However, Facebook’s response still leaves unclear, in my view, why disclosure of material that was previously posted on FB and viewable by the public, but which was then taken down and is now stored by Facebook, raises privacy concerns. 8/11

FB also argues that SCA exceptions refer to voluntary disclosure & aren't grounds on which the Court could compel disclosure. This arguably misses the point if The Gambia is urging the Court to instruct FB that it could, in fact, disclose material without violating the SCA. 9/11

Finally, it remains unclear why Facebook could not ask the Court, at a minimum, to limit the subpoena to cover the materials it's already providing to the IIMM, or by what SCA interpretation or exception it is making those disclosures. 10/11

The Gambia’s response to Facebook’s latest filing is due *tomorrow*. Stay tuned. -END- #Rohingya #Myanmar #ICJ