The Gambia v Facebook: Obtaining Evidence for Use at the International Court of Justice (Part II)

[The first installment of this post provided an overview of the court’s decision in The Gambia v Facebook and identified some problematic aspects of the decision.]

As discussed in the first installment of this post, a US federal court has ordered Facebook to disclose to The Gambia materials relating to anti-Rohingya hate speech and incitement to violence in Myanmar that Facebook previously deleted. The Gambia’s request is in aid of its effort to hold Myanmar accountable for alleged violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide at the International Court of Justice (ICJ). In brief, the US federal court determined that deleted content was not subject to the non-disclosure rule of the Stored Communications Act (SCA) (28 USC §2702) and that, in the alternative, pages or posts that were accessible to the public before Facebook took them down were within a statutory exception to the non-disclosure rule anyway.

Having already summarized the decision and identified some potential flaws in Part I, a few additional observations may be in order.

First, the scope of The Gambia’s document request, and, therefore, the scope of the Court’s order, remains unclear with respect to one category of communications: private user-to-user messages. The court found (and the parties agreed) that private messages (as opposed to ‘nominally’ private pages that were broadly accessible) did not fall within the ‘lawful consent’ exception to the SCA’s non-disclosure rule. Yet the court’s narrow interpretation of ‘backup storage’ appeared to mean that private messages associated with permanently deleted accounts were no longer covered by the SCA at all. During a pair of status conferences, counsel for The Gambia made clear that the discovery request extended to such private communications. He noted, for example, that evidence of genocidal intent might be found ‘in the behind-the-scenes communications among the generals’ and that ‘purely private’ communications should be disclosed, albeit on grounds other than the ‘lawful consent’ exception (Transcript, Oct. 21, 2020, p 10; Transcript, Nov. 18, 2020, p 37). Although it does not highlight this fact, the court’s order apparently does cover such private communications. If the Facebook accounts used to produce such messages have been permanently deleted, such materials, under the court’s view, are no longer covered by the SCA; it remains unclear what this might mean if only one of the accounts involved in a private conversation has been deleted. In any event, this may explain why the court did not rely solely on the ‘lawful consent’ exception in granting The Gambia’s request.

Secondly, the order contained some surprising language. For example, the decision repeatedly referred to the genocide of the Rohingya as an established fact (rather than referring, for example, to allegations of genocide). Whether genocide has taken place in Myanmar is the ultimate question before the ICJ. The court may have simply meant that acts capable of constituting genocide (the actus reus of genocide) have taken place, while genocidal intent remains to be proven. More circumspect language might have been expected, however, especially considering that the United States has thus far declined to classify the situation as genocide. Another oddity was the court’s decision to describe ‘Facebook taking up the mantle of privacy rights’ as ‘rich with irony’ because of Facebook’s ‘sordid history of privacy scandals’ (p 18). Even while praising Facebook’s action to delete ‘the content that fueled a genocide’, the court characterized Facebook as having ‘stumbled at the next step, sharing that content’ (p 31). Facebook is the target of justified criticism on many different fronts (including in how it may now be seeking to burnish its image), but the suggestion that it was disingenuous or hypocritical for Facebook to raise privacy-based policy arguments—or to have withheld content that it reasonably considered to be protected under the SCA—was wrong-footed. Indeed, Facebook’s ‘sordid history’ might suggest good reasons for Facebook to be especially attentive to such issues now.

Thirdly, the decision underplayed the extent to which Facebook urged the court to deny the request on the ground that The Gambia should go through the IIMM, rather than seeking the materials directly from Facebook. While it is true that the IIMM’s mandate ‘allows it to share information in relation to the ICJ proceedings’, its primary function is to prepare files to facilitate future criminal prosecutions—a distinction that Facebook seemed to disregard. As counsel for The Gambia asserted, the IIMM cannot compel Facebook to share material and is left to depend upon the ‘kindness of Facebook’ (Transcript, Nov. 18, 2020, p 123). By contrast, Congress enacted §1782 to provide a means by which parties to an international proceeding can seek compulsory disclosure. Moreover, The Gambia’s request extends beyond what Facebook had indicated it is working to share with the IIMM.

Fourthly, the decision raised additional questions relating to privacy and data protection that go well beyond the scope of this post. For example, there was no discussion by the court about whether compliance with the court’s order might conflict with Facebook’s obligations under privacy or data protection laws elsewhere, especially if any of the requested data were stored outside the United States. Going forward, could a court order compelling the disclosure of deleted content pursuant to a §1782 request create conflicting legal obligations (for example, with the General Data Protection Regulation (GDPR))? Could a social media company challenge such an order if compulsory disclosure would violate foreign law? The decision also paid little attention to another concern that Facebook raised: Will a narrow interpretation of the scope of the SCA increase the opportunities for foreign governments to seek the disclosure of social media content, including information that might be used to target political enemies or human rights activists, or for other corrupt purposes? (Transcript, Nov. 18, 2020, pp 68-69). A related issue concerned whether the court’s approach might work to undermine the CLOUD Act, a federal statute enacted in 2018 that allows foreign governments to enter into bilateral agreements with the United States to facilitate law-enforcement requests for the disclosure of private data from third parties. In Facebook’s view, that procedure creates better safeguards around the disclosure of data to foreign governments than does §1782, where decisions are left largely to judicial discretion. 

Fifthly, the decision provided an important example of an international fact-finding body making a difference. The court relied extensively on findings by the International Independent Fact-Finding Mission on Myanmar — and not just for background. For example, the court’s conclusions about whether ‘nominally private’ Facebook groups and posts were ‘public in nature’ drew on that body’s work, as did its determination that the scope of The Gambia’s request should reach back to 2012 rather than 2016. The court specifically noted that the UN Fact-Finding Mission had concluded that Myanmar officials were using Facebook to spread Rohingya-related disinformation as early as 2012 and that the violence directed at the Rohingya in 2016 and 2017 ‘could only be understood by examining Myanmar official’s activities dating back to 2012’ (pp 25-26). International commissions of inquiry have become routinely viewed as precursors — if not prerequisites — to international criminal proceedings. The example set by The Gambia’s application suggests that reports from international fact-finding bodies may also assume an important role in efforts to seek evidence of wrong-doing through domestic mechanisms.

What lies ahead?

Facebook now has ‘legal cover’ to respond to The Gambia’s request. But will it? Even if one takes Facebook at its word when it comes to upholding human rights in Myanmar, Facebook may view the broader implications of the ruling—which extend well beyond the immediate contours of The Gambia’s request—as deeply problematic. The parties have 14 days to file written objections. If the magistrate judge’s order becomes final, an appeal to the Court of Appeals for the D.C. Circuit may be next. Facebook might seek to challenge any number of points; the finding that a file copy of ‘permanently deleted content’ is beyond the non-disclosure protection of the SCA could top the list. In other words, The Gambia’s victory may be short-lived.

The prospect of a further delay in any disclosure by Facebook to The Gambia should also be considered in the context of the ICJ case. The time has already passed for The Gambia to make use of any material obtained from Facebook in its Memorial, which was submitted in October 2020. Any new evidence will need to be introduced at a later phase. The ICJ is likely (but not guaranteed) to authorize a second round of pleading in this case, which could present that opportunity. Alternatively, if the written proceedings have closed, The Gambia would need to obtain Myanmar’s consent or special authorization from the Court (Rules of Court, art 56). As set forth in Practice Direction IX, the late introduction of evidence is discouraged but may be authorized in ‘exceptional circumstances’. In this case, The Gambia would presumably be able to explain persuasively why the material is necessary to include in the case file and could not be introduced earlier. In any event, the ICJ proceedings are currently at a stand-still. The ICJ has not yet held a hearing on the preliminary objections that Myanmar filed in January 2021, just prior to the military coup that has ushered in a new period of instability and violence. Meanwhile, the Credentials Committee of the UN General Assembly has postponed taking a decision on who represents Myanmar at the United Nations (on the competing claims, see here, here, and here). The silver lining to this pause in the ICJ proceedings may be that it affords The Gambia additional time to obtain the material that it seeks from Facebook. In terms of evidentiary value, the material could range anywhere from the proverbial ‘smoking gun’ that provides direct evidence of genocidal intent to an accumulation of data that provides further support for drawing such an inference.

Perhaps above all, The Gambia v Facebook decision underscores the need for a better legislative framework—in the United States and elsewhere—to enable social media companies to meet the competing requirements of privacy and data protection, content moderation and free expression, and cooperation with legal accountability initiatives. Facebook’s own Oversight Board has urged Facebook to address the fact that removing harmful content ‘may undermine accountability efforts’ and must be balanced against Facebook’s ‘responsibility to collect, preserve and, where appropriate, share information’ in connection with accountability mechanisms. Indeed, the Oversight Board (in its decision upholding the suspension of former President Trump’s account) urged Facebook to amend its corporate human rights policy to make clear how information that was previously public on the platform can be made available to researchers and investigators in a manner that conforms with applicable data protection law. While The Gambia v Facebook decision might prompt Facebook to update that policy, the more promising path is for Congress to amend the SCA—and potentially §1782, as well—to establish a new legislative regime that covers these scenarios.

In conclusion, the case brought by The Gambia against Facebook highlights the strange mix of incentives that a company such as Facebook may face—caught between protecting its business model, providing assistance to human rights campaigners, and defending its own reputation. The Gambia’s discovery request is not about Facebook’s own alleged complicity or accountability for what has transpired in Myanmar over the past decade. Nonetheless, the court’s decision suggested a moral obligation—which has now been transformed into a legal obligation—that Facebook ‘live up to its words’ when it comes to remediation (p 32). That sounds fine and good, but whether the court itself has struck the right balance among these competing values is an open question.