Update: @Facebook has filed its opposition to #TheGambia’s §1782 request in US Federal Court for discovery re the #genocide case against #Myanmar at the #ICJ. @Gambia_MOJ seeks access to a wide range of public and private communications by Myanmar officials. #Rohingya 1/15

A short summary: @Facebook argues that the proposed discovery order would require it to violate the Stored Communications Act (SCA)(§ 2702(a)), a US law that prohibits providers of an ‘electronic communications service’ from disclosing the content of user communications. 2/15

@Facebook points to other means for The Gambia to seek the requested information, namely the SCA exception referring to the state-to-state procedure in 18 USC § 2523 (see https://www.law.cornell.edu/uscode/text/18/2523), or pursuant to mutual legal assistance provisions in various treaties. 3/15

@Facebook also argues that The Gambia’s request is extraordinarily broad & not narrowly-tailored, as required. Per Facebook, the request fails to identify any accounts with sufficient specificity for Facebook to determine which accounts are within the scope of the request. 4/15

Also per Facebook, #TheGambia seeks special, unbounded access to account info that no other government in the world (not even the US) has available to it in any other proceeding. FB also rejects the relevance of requests re its internal policies & investigations on Myanmar. 5/15

Without taking a position on the overall merits of Facebook’s argument in opposition to #TheGambia's request, I have a few preliminary observations and questions. 6/15

1. Facebook objects to the request seeking data from several years before the 2016-17 events that are the focus of the #ICJ case. This misses the point; earlier evidence may help to establish genocidal intent & a state policy aimed at physical destruction of the #Rohingya. 7/15

2. Facebook’s argument seems focused on the legal bar to disclosing private communications by users. It's not clear the SCA covers material posted *publicly* by Myanmar users and then taken down (and made inaccessible) by Facebook (a big part of The Gambia’s request). 8/15

2a. If the SCA provisions do not cover materials that @Facebook users shared publicly, this suggests that a more narrowly-tailored request under §1782 could avoid the SCA issue (Facebook argues that the Court has no obligation to ‘trim’ an overbroad request). 9/15

3. Facebook’s argument that the request lacks sufficient specificity seems disingenuous. It’s hard to square with The Gambia’s identification of 19 individuals and organization whose accounts were banned, and… 10/15

3a. …The Gambia also refers to 438 Facebook pages, 17 groups, 145 accounts, and 15 @Instagram accounts in Myanmar that were removed in October/December 2018, plus posts by the military-owned Myawady TV station. This is fairly specific. 11/15

3b. @Facebook's argument that it can't tell what accounts are within the scope of the request seems unconvincing. The Gambia’s request refers to accounts in Myanmar that FB itself already banned or suspended during the specified timeframe. 12/15

3c. @TheGambia is not asking @Facebook *now* to identify FB accounts that may have engaged in suspect activity. It is seeking materials relating to accounts in Myanmar that Facebook previously took action against, as FB has documented. 13/15

There's undoubtedly much more to say about the @Facebook response. I’d welcome thoughts from those with §1782 experience. Should @Gambia_MOJ explore the §2523 option? Should the §1782 request be limited to (formerly) public documents? Do any other SCA exceptions apply? 14/15

The Gambia did not preemptively deal with Facebook’s SCA defense in its §1782 application, so we will see what they have to say. The response is due 11 August. -END-