Thread by @WesRist

Judge Furuqui of US DC District Court has ordered @Facebook to release content that related to #Myanmar govt dangerous speech targeting #Rohingya minorities. Judicial order at the @asilorg #ILIB link 1/

https://twitter.com/asilorg/status/1441077387639263240

@Facebook @asilorg 28 USC §1782 allows requests of statements or documents for proceedings in for/int'l tribunals, subject to Stored Comms Act (SCA). SCA relies heavily on who is a "user" under the 1986 US Congress understanding of comms tech 2/

@Facebook @asilorg Gambia v. FB decision notes that SCA is not an internet privacy statute, but instead focused on comp networks instead (citing @OrinKerr's 2004 User's Guide to SCA from @GWLawReview). Gambia tries to argue that #Myanmar govt is not a "user" under SCA 3/

@Facebook @asilorg @OrinKerr @GWLawReview Faruqui order says FB is an "Electronic Communication Service" (ECS) under SCA since it provides service to public. ECS are generally prevented from knowingly divulging communications "while in electronic storage." 4/

@Facebook @asilorg @OrinKerr @GWLawReview Temp storage category is not in question, only whether this was "backup storage." Court says that at SCA passage, Congress saw ECS providers as "mail/package delivery services" which doesn't address content moderation cite to (crsreports.congress.gov/product/pdf/R/…) 5/

@Facebook @asilorg @OrinKerr @GWLawReview Faruqui says "This Court is the first to consider the question of what happens after a provider acts on its content moderation responsibility. Is content deleted from the platform but retained by the provider in 'backup storage?'” Responds "It is not" 6/

@Facebook @asilorg @OrinKerr @GWLawReview Flags that "backup" only means for purposes of recovery. If original has been removed by ECS, it is not accessible & is not filling need of back up - quotes Gonzales v Uber Techs ... 7/

@Facebook @asilorg @OrinKerr @GWLawReview “the lifespan of a backup is necessarily tied to that of the underlying message. Where the underlying message has expired..., any copy is no longer performing any backup function." 8/

@Facebook @asilorg @OrinKerr @GWLawReview Flags that since FB took the affirmative action under its content moderation rules to remove the content, & in fact publicly states that "nobody on FB can view it" the removed content cannot be a "backup copy" 9/

@Facebook @asilorg @OrinKerr @GWLawReview Cites to @TheJusticeDept manual that says backup protection “does not include post-transmission storage of communications.” justice.gov/sites/default/… 10/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept Distinguishes from 4th/9th Circuit Court of Appeals case (Theofel) by pointing out that decision included an exception for deleted content still kept by service provider - states "This is devastating to Facebook's argument" (I love the tone of this decision! :-)) 11/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept Dismisses FB's claim that keeping content for internal review purposes puts it in backup content category "FB claims it kept ... records as part of autopsy of its role in the #Rohingya #genocide. While admirable, that is storage for self-reflection, not for backup" 12/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept Distinguishes from Hately by flagging that the "preventing destruction" purpose of that case is irrelevant when FB itself was the "destroyer" bc the content was deemed "illicit and unwelcome on its platform" 13/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept Moves on to FB's privacy policy argument that allowing access will "have sweeping privacy implications-every time a serv prov deactivates user account for any reason, the contents of the user’s comms would become available for disclosure to
anyone, including U.S. government” 14/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept Responds first with "Facebook taking up the mantle
of privacy rights is rich with irony" - the snark is strong with this one! 15/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept Goes on to point out repeated and significant findings against FB related to violation of users' privacy, including @FTC findings 16/ ftc.gov/news-events/pr…

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC Final SCA take "This is the way Congress authored SCA. When a user signs up for FB account, they agree to abide by FB's TOS. Failure to abide by TOS may result in FB unilaterally deleting account. Once content is deleted from FB, it is no longer protected by the SCA" 17/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC Being incredibly thorough, Faruqui goes through analysis of all possible exceptions to SCA protection. Points to "may" language allowing service provider to release info w/ lawful consent of originator - says district courts have done poor job of analysis of voluntary release 18/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC Instead, points to @CaSupremeCourt analysis that using "may" isn't sufficient to "categorically immunizes service providers against compulsory civil process where the disclosure sought is excepted on other grounds from the protections afforded by the Act" 417 P.3d 725 19/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt Sides w/ @CaSupremeCourt w/ statement "W/out clear statutory intent to show otherwise, this Court cannot logically conclude that Congress gave Facebook greater power over discovery than the judiciary." Again, the understated snark is pervasive in t his decision! 20/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt Consent exception to SCA is dismissed quickly "Although some of the pages were nominally private, the #Myanmar officials intended their reach to be public, and in fact they reached an audience of nearly 12 million followers" 21/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt Statutory standing is in footnote, but I'm going to include it, bc #InternationalLaw geeks will love how quickly and easily it's addressed 22/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt "FB has offices in DC. Pending @CIJ_ICJ case constitutes a proceeding before int'l tribunal & #Gambia is interested party in that proceeding as litigant. See Intel, 542 U.S. at 256 (finding that a litigant before the foreign tribunal is the quintessential interested person)" 23/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ In deciding unduly intrusive burden, cites that "The #Gambia seeks a discrete and known universe of records—the content that @Facebook previously found and deleted from its platform" 24/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ Dismisses @Facebook's claim of overbroad request w/ point out limited scope, time, users of content requested, then follows with this gem "FB would seemingly know a thing-or-two about searching its data, as that is in part how it generates revenue." Faruqui dropping 💣💣💣s! 25/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ Resolves relevance question in a paragraph, ultimately stating "That the records are highly relevant to the foreign proceeding balances out any incremental burden on @Facebook" 26/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ .@Facebook tries to assert that there are other ways to get the content #Gambia is requesting, including #MLATs (hah! the timeline on those!!) & @UN #IIMM, but judge points out that §1782 doesn't care if other avenues are available - there's no "remedy exhaustion" requirement 27/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN And to @ErinFarrellRos1's point, Court finds that @CIJ_ICJ "may be a superior venue given that it regularly adjudicates #GenocideConvention issues" 28/

https://twitter.com/ErinFarrellRos1/status/1441088437956665354

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 #Gambia request includes results of @Facebook's internal investigation. Court holds legal privilege still applies to those, but "FB must produce any non-privileged documentation that relates to the internal investigation" 29/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 Court does hold against #Gambia on Rule 30(b)(6) deposition request, which was basically asking @Facebook to explain all of the documents it has requested from FB, which court finds "unduly burdensome & adds little in the way of concrete evidence" 30/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 "Conclusion" section turns the snark up to 11. "After 17 years, @Facebook has grown self-aware. Realized that need for extensive content moderation is inherent in any platform that is built upon user-generated content, ..." 31/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 "& w/ over 2B users, this is a task of immense complexity and intensity for @Facebook. Indeed, the internet is littered with ads by FB touting their support for updated content moderation and internet regulations to handle 'today’s toughest challenges'” /32

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 He then includes screenshots of ads from @Facebook touting the "update the internet regulations" that have been spamming the web recently. I don't know that I've ever seen screenshots included in a decision when not being used as proof of a factual point! 33/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 Very powerful 2nd to last para "@Facebook can act now. It took the first step by deleting the content that fueled a #genocide. Yet it has stumbled at the next step, sharing that content. Failing to do so here would compound the tragedy that has befallen the Rohingya." 34/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 "A surgeon that excises a tumor does not merely throw
it in the trash. She seeks a pathology report to *identify* the disease." 35/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 "Locking away the requested content would be throwing away the opportunity to understand how disinformation begat #genocide of the #Rohingya and would foreclose a reckoning at the @CIJ_ICJ." 36/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 Ends w/ order "For the foregoing reasons, The #Gambia’s request for de-platformed content & related internal investigation documents is GRANTED and its request for a deposition with @Facebook is DENIED."

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 For a decision that started w/ the judge saying "I come to praise Facebook, not to bury it" that felt like the judge only things "burying" takes place when you use a
🚜 not a shovel. 38/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 There's obviously going to be a lot that comes from this as we get a chance to really review it and sit with the language. A few things that jump out to me immediately ... 39/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 I genuinely wonder if @Facebook will appeal this. They've been facing intense public pressure on a wide variety of issues about their #humanrights record. Challenging this would just add to bad PR 40/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 I could also see @Facebook submitting this to @OversightBoard and hoping they might make the problem go away. Having your brand tied to the #Rohhingya #Genocide is bad enough, fighting it through the courts seems like compounding bad choices. 41/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 @OversightBoard Get @OversightBoard to tell you that you should comply (which they should have done before this all anyway) & then point to your internal process as a win & continue to use the board as cover against more stringent gov regulation (not what I want, to be clear, just an option) 42/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 @OversightBoard Also, I'm very struck by the conclusory language of Faruqui. He's careful throughout the decision to refer to the @CIJ_ICJ case as one that will determine whether a violation of the #GenocideConvention occurred ... 43/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 @OversightBoard However, in his conclusion, he says "[@Facebook] took the first step by deleting the content that fueled a #genocide." That's obviously not a judicial finding of genocide for any legal purpose, but it is a telling insight into his perception of what happened in #myanmar 44/

@Facebook @asilorg @OrinKerr @GWLawReview @TheJusticeDept @FTC @CaSupremeCourt @CIJ_ICJ @UN @ErinFarrellRos1 @OversightBoard And w/ that, I'm going to take a break. I'll be rereading the order over the coming days and weeks. Curious to see what @Arsalan_Suleman & the other (non-@Twitter using) counsel @FoleyHoag will have to say about the ruling 45/

One quick addendum, here's your judge for this decision, a former US prosecutor who's been on the bench for almost exactly a year (appointed 9/14/2020). Hell of an anniversary! dcd.uscourts.gov/content/magist…

So, after rereading the decision and reading some brilliant commentary from actual experts in privacy and communications issues, I've learned a lot more since my livetweet of reading the decision.

First, go read @OrinKerr's excellent first takes on the decision. He raises a lot of insightful points that, as a non-privacy/tech law person, I just didn't know about.

https://twitter.com/OrinKerr/status/1441274336984195076

@OrinKerr Second, read @KAlexaKoenig's excellent @just_security piece, "Q&A on Court Ordering FB to disclose content on #Myanmar #Genocide" for implications for future decision, #humanrights actors who might be negatively impacted & the potential Jan 6 implications justsecurity.org/78358/qa-on-co…

@OrinKerr @KAlexaKoenig @just_security Finally, it's very clear that no matter this case's resolution, social media needs to carefully & deliberately consider how to balance tensions between privacy & investigative access. The problem isn't going away & legal regulation may not offer the solutions they want.