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THREAD: What liability could Facebook or its employees have for illegal Russian contributions made via Facebook?
1/ One week ago, I wrote this thread, explaining the important implications of the Facebook search warrant:
2/ Since that time, the #1 question I've been asked is whether Facebook or its employees could have their own potential liability.
3/ As a starting point, let me say that many companies create communication platforms that are commonly used by criminals.
4/ For example, every cell phone provider has subscribers who are criminals who use those phones to further the crime.
5/ When I was a federal prosecutor, I routinely sought court orders to obtain data from communication providers like Facebook or Verizon.
6/ Just because a crime is committed on a communications platform does *not* mean the communications platform is criminally liable.
7/ But what if someone at Facebook knew what was going on? After all, a U.S. Senator said that they were paid in rubles and implied that
8/ he was concerned about their role. And he wasn't the only one. The short answer is that Facebook employees are like anyone else.
9/ If they knew that a crime was being committed and helped the crime succeed in some tangible way, then they have criminal liability.
10/ In this context, the crime was an illegal foreign contribution to a U.S. election. So the question would be whether someone at Facebook
11/ knew that foreigners were contributing to the election and helped that effort. To be clear, they would have to actually *know* about the
12/ activity, not just have access to a database that had data in it. So let's say hypothetically that someone at Facebook did this.
13/ In that hypothetical example, could Facebook itself be charged with a crime? The short answer is "yes," if the person was someone high
14/ up in management, (If you want to read more, search for "respondeat superior"). But generally speaking, federal prosecutors prefer to
15/ charge individuals, not companies. You can't throw companies in prison. Prosecuting individuals is a more effective way to deter crime.
16/ Here is a famous recent memo by @SallyQYates when she was Deputy AG discussing that point in great detail: justice.gov/archives/dag/f…
17/ There are a set of ten factors that federal prosecutors consider when deciding whether to charge a corporation. You can find those
18/ factors at 9-28.300 in this link. I won't discuss them all here. justice.gov/usam/usam-9-28…
19/ One very important factor is "the corporation's willingness to cooperate in the investigation" of its officers and employees.
20/ One thing I can tell you first-hand is that Facebook has some really excellent lawyers, and I'm sure they have considered that factor.
21/ A corporation is bigger than any one individual. Corporations have many shareholders and employees. So a lawyer for the corporation has
22/ a duty to conduct an investigation when there is potential wrongdoing. It did not surprise me at all to see a video from Mark Zuckerberg
23/ referencing an internal investigation. That's what a smart company would do in this situation. Quickly investigate and cooperate.
24/ I should note that Facebook has often had a difficult relationship with law enforcement. They insist on court orders even in situations
25/ where other companies wouldn't. But here Mueller obtained that order (a search warrant) and there is a lot at stake for them.
26/ So if Facebook employees were involved in the criminal scheme, I'd expect that to be discovered quickly.
27/ Regardless of what happens in terms of criminal liability, Facebook has significant challenges ahead. For one thing, people may be
28/ tempted to file civil lawsuits against Facebook. There are many obstacles to lawsuits but that could happen. A more likely issue that
29/ Facebook will face is a desire by Congress to pass laws that impose responsibilities on Facebook going forward to ensure that this never
30/ happens again. As an American, I hope and expect that there is a bipartisan effort to pass laws to limit future Russian operations. /end
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