Thread by @mabecker17

We finally have the long-awaited decision in #TheGambia’s lawsuit in US federal court against #Facebook seeking disclosure of material for use in its pending case against #Myanmar at the #ICJ (alleging genocide against the #Rohingya). Here's an overview. 1/30

In brief, the federal magistrate judge handling this matter rejected #Facebook’s statutory & policy arguments and granted an order compelling Facebook to produce to #TheGambia the bulk of the material requested, but denying its request to depose a Facebook representative. 2/30

I previously tweeted about the party arguments in this litigation last year when the parties were filing their briefs. Those summaries can be found here:

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

. In many respects, the federal magistrate judge has accepted #TheGambia’s arguments. 3/30

To review: The Gambia sought a court order under 28 USC 1782 compelling #Facebook to produce to it material previously posted on FB by a range of Myanmar officials and groups (eg, relating to incitement of hatred against the #Rohingya), but subsequently removed by Facebook. 4/30

The underlying motivation for The Gambia is that the requested material may contain evidence relating to genocidal intent, which is the crucial hurdle The Gambia needs to surmount in the #ICJ litigation under the #GenocideConvention. 5/30

The Court’s order directs Facebook to produce the “de-platformed” material by users/accounts that The Gambia identifies in its request, as well as documents re Facebook’s internal investigation (ie how it determined what content to take down). 6/30

The decision turned mainly on whether the Stored Communications Act (18 USC 2702) barred Facebook’s disclosure of the requested material. The SCA mandates “electronic communication services” (ECS) (this covers Facebook) not to divulge “stored electronic communications”. 7/30

On its face, this would seem to present a legal obstacle to Facebook divulging the requested material, but the statutory definition of “stored electronic communications” is narrow, covering “temporary” and “backup” storage only. 8/30

The judge found that deleted-but-preserved material was neither temporary nor backup storage under the SCA. This was a key finding: Content that is deleted and retained when an ECS exercises “content moderation responsibility” is NOT “backup” storage. 9/30

In essence, the judge reasoned that “backup” storage necessarily means an “original” version exists elsewhere. That isn't the case here, where the de-platformed material is the “original” content; as such, the SCA does not bar Facebook from divulging the requested material. 10/30

Facebook had also argued that acceding to The Gambia’s request would undermine data privacy rights protected by the SCA. The judge was unpersuaded. For one, he noted that fake accounts that violate FB’s Terms of Service have no privacy claim against FB. 11/30

Furthermore, once FB deletes content from the platform for a Terms of Service violation, that content no longer enjoys SCA protection. As the order puts it, Congress “empowered ECSs to denature parts of the SCA”. Facebook cannot hide behind the SCA to avoid disclosure. 12/30

The Court also noted that most material was posted publicly; user consent to disclosure by an ECS may then be presumed. This is another path to lawful disclosure. While some "fake" FB accounts were “nominally private”, their creators “intended their reach to be public”. 13/30

The order also clarified something that had been unclear before. The Gambia ultimately did not seek disclosure of “private messages” (sent via FB Messenger). The judge therefore didn't need to decide whether such content could be lawfully disclosed on a §1782 request. 14/30.

The Court rejected Facebook’s argument that the request was unduly burdensome, pointing to its focused and tailored nature. Importantly, the judge agreed, based on what’s at issue in the ICJ case, that the request should reach back to 2012, not only to 2016 (as FB argued). 15/30

Facebook also argued that The Gambia should have gone through other channels (ie, MLAT or the CLOUD Act). The judge stated that all that mattered was whether the §1782 requirements were met, and that §1782 did not require exhausting all other options. 16/30

The judge also rejected FB’s argument that The Gambia should seek the material from the #IIMM instead (iimm.un.org). This hardly made sense to begin with, and the judge gave it short shrift (while inserting a bizarre #ComingtoAmerica reference along the way). 17/30

With little analysis, the judge also upheld the request that FB disclose internal documents relating to its own investigation into the conduct of #Myanmar officials on the platform, as it may shed light on highly relevant questions of genocidal intent for the #ICJ case. 18/30

However, the judge rejected The Gambia’s request to depose a FB rep under FRCP 30(b)(6) as overly burdensome. In my view, this wasn’t persuasive: FB’s internal documents might require explanation; the report might contain gaps or be intelligible only to FB insiders. 19/30

In sum, the order concludes: “Facebook’s concern was that the SCA prevented the requested disclosure. However, the SCA has a well-established path for disclosure of deleted content. Facebook can act now.” 20/30

This is already a lengthy thread, but I’d like to add a few other initial reactions to this decision, which, if upheld, may be an important precedent in terms of how parties before international/foreign courts can gather evidence in an age of social media. 21/30

First, it's remarkable and surprising that the judge seemingly accepted that Myanmar officials have committed genocide against the #Rohingya (rather than referring to alleged genocide). This is not the stated position of the US gov't, for example: reuters.com/article/us-mya… 22/30

Indeed, whether genocide has taken place in Myanmar is THE ultimate question before the #ICJ. I'm surprised the judge wasn't more circumspect on this. He may have been seeking to underscore the public policy rationale for exercising judicial discretion to compel disclosure. 23/30

In any event, this decision is a notable example of an international commission of inquiry having a discernable impact. The judge relied on the UN Fact-Finding Mission for several points that were relevant to the order (aside from the ultimate question about genocide). 24/30

For example, the judge’s conclusions about whether “private” FB posts were in essence “public” and whether The Gambia had reasonable grounds to seek documents back to 2012 were based on the Court’s decision to credit findings in the UN FFM report. 25/30

This decision is therefore a relevant example when it comes to considering broader questions about the impact that international commissions of inquiry may or may not have. For more on this big-picture issue: ejil.org/pdfs/30/3/2987… 26/30

Secondly, are there downsides to the judge’s unequivocal decision that deleted content loses SCA protection? In theory, this seems to give an ECS (like Facebook) the power to strip personal data of privacy protections that users may expect to have—by de-platforming it. 27/30

What might be the impact of this interpretation of the SCA if a user (say a human rights activist) posts material on Facebook and then voluntarily deletes the post (to cover her tracks). If it still exists on FB servers, could it be subject to a disclosure request? 28/30

Thirdly, it seemed entirely gratuitous for the judge to highlight Facebook’s “sordid history of privacy scandals” in addressing (mocking?) FB’s policy arguments against disclosure. Indeed, that history might suggest why Facebook has reasons to invoke privacy arguments now. 29/30

This is a win for #TheGambia. If upheld, the decision may function as an important update to the SCA in an age of content moderation by social media companies. But whether the material Facebook must now disclose actually bolsters the case before the #ICJ remains to be seen. END

The press release from @Gambia_MOJ. #Myanmar #Rohingya #Facebook

https://twitter.com/Gambia_MOJ/status/1441062447142473728