08 Aug The Republic of The Gambia v Facebook, Inc.: Domestic Proceedings, International Implications
The Gambia initiated legal proceedings in the United States a few months ago against Facebook, in order to compel the company to hand over information related to its ongoing case against Myanmar, relating to the Rohingya, before the International Court of Justice.
This legal strategy is in accordance with a provision of U.S. law – §1782 of the U.S. Code, a federal statute which permits the compelling of testimony, statements, or documentation “…for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” While this seemingly broad provision has been used in relation to proceedings before international arbitral tribunals and foreign courts, this seems to be a first for proceedings before the International Court of Justice.
While the request will be adjudicated in keeping with U.S. statutory standards, case law and international law as applicable, the focus of this post relates to wider implications of the request and the response by Facebook.
A bit of background – there has been much discussion about the role of Facebook in the precursor to, as well as the commission of atrocities in Myanmar. The UN Independent International Fact-Finding Mission on Myanmar (UN FFM) September 2018 report dedicated significant detail in examining the role of Facebook, finding that it was a platform for the dissemination of hate speech, potentially amounting to the crime against humanity of persecution. It is also worth recalling that prior to the release of the UN FFM report, Facebook suspended and banned certain accounts in Myanmar, including of the Chief of the Army, Minh Aung Hlaing. Facebook subsequently established a human rights impact assessment into its actions in Myanmar – with anodyne results at best, in my view. This assessment proposed a range of actions, including the creation of a “human rights management and mitigation plan” and the need to do better in Myanmar.
In the motion for authorization filed by The Gambia before the United States District Court this past June, The Gambia has asked for communications on Facebook that were “produced, drafted, posted or published”, by the head of the army in Myanmar, the police force, specific light infantry divisions implicated in the mass atrocities in Rakhine state, as well as numerous others. The Gambia also requests information from the accounts as well as documentation relating to any internal investigations that Facebook undertook, resulting in the suspension or termination of accounts, from 2012 onwards. In addition to these targeted requests for particular accounts and information, some of the other information asked for is broader, and would include groups “suspected to be acting” in coordination. Worth noting also is a request for information from Instagram accounts. (pages 14 – 17)
Facebook’s opposition to the application, filed in court a few days ago, has rejected the request from The Gambia in its entirety and has asked the court to deny it based on non-compliance with U.S. law. Briefly, Facebook’s argument is twofold: first, that issuing of a subpoena in this case would be a violation of a federal statute – the Stored Communications Act – and that the proper channel would be either via a mutual legal assistance treaty, or an exception to the legislation. And secondly, that the statutory requirements of §1782 have not been met.
Essentially, the argument is that there is an obligation on Facebook relating to non-disclosure of “stored” information, save by means of an exception – and these stringent demands that are applicable even to the U.S. government must therefore be applicable to a foreign government. This begs the question, also brought up in a twitter thread, whether public information posted on Facebook falls within the scope of this provision. A question to address in more detail, by those with expertise in this area of U.S. law.
Regarding the suggestion of a mutual legal assistance treaty, clearly, there is no such agreement between The Gambia and the U.S. For a list of all bilateral treaties entered into between the U.S. and other states and in force on 1 January 2019, see here. Assuming for arguments sake that The Gambia were to take this advice to enter into a mutual legal assistance treaty – apart from the time taken to complete negotiations of such a treaty – the time taken between signature and entry into force of such treaties (after ratification by the U.S. Senate) is also significant. Based on the timelines in the list of treaties above, this can range from little over a year (in the case of Israel) to eight years (the case of Ireland). Clearly, an unworkable solution in the current context, even if there are the best of intentions and political will (also not guaranteed).
Now, addressing the statutory requirements of §1782, Facebook argues that the application fails to meet the standards of this provision, in particular, specificity of the request. Facebook argues that the request is “extraordinarily broad”, is not “limited by geography or subject matter” and does not “identify accounts with sufficient specificity”. (pages 3 – 4) While there are some aspects of the information sought which may be construed as broad, The Gambia has however been quite specific, including in naming the accounts of those individuals and entities that were suspended or terminated by Facebook. In fact, the information requested is as specific as indicating the names and designations of seventeen military personnel, including the chief of the army; four named organizations; nine named Facebook pages; information relating to the twenty individuals or organizations that Facebook banned in 2018, in addition to broader categories of information. This argument exaggerates the scope of The Gambia’s request and seems geared to nullify the entire request, without providing the specific information being asked for. The question therefore is whether providing the more narrowly targeted information would satisfy the requirements of the provision.
Arguing against the release of internal Facebook policies and procedures, the company avers that the “…request for information about Facebook’s internal policies and procedures is not relevant to the claims being pursued in the ICJ about the actions of the Myanmar government.” It goes on to state, “There is no indication whatsoever as to how such materials would be useful or useable in the ICJ proceedings, as the outcome of those proceedings will turn on factual findings made by the ICJ, not hearsay documents discussing internal findings made by Facebook.” (emphasis supplied, page 11)
Surely, the relevance or not of the information requested is for the applicant to determine, in the manner and approach to the case instituted before the ICJ, and the type of evidence they seek to gather. In addition, the appreciation of the evidence by the international court is for it to determine, and there is a wide margin in how the court chooses to approach matters of evidence. The Statute of the ICJ and the Rules of the Court do not prescribe the manner and standard of evidence, and certainly do not preclude the appreciation of hearsay evidence – if the internal documentation of Facebook could even be characterized as such. There is a wide margin of latitude in the appreciation of evidence, and the statement by Judge Tomka to the 6th Committee of the General Assembly on the subject is illuminating. There is a brief discussion of hearsay evidence, indication is not inadmissible but may have little weight. The cases referred to in this regard – Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) and the Corfu Channel (United Kingdom v. Albania) – are concerned with the traditional understanding of hearsay, and arguably, not entirely applicable to the information being discussed in this case.
The confident assertion by Facebook that the information required extends to 2012, and thus “…involve activity wholly unrelated to the atrocities at issue” is also problematic (page 11). In fact, the human rights impact assessment of Facebook’s actions in Myanmar clearly indicates that there were complaints from civil society “going back to 2012”. It is no coincidence that the temporal scope of the UN FFM, as well as the Independent Investigative Mechanism for Myanmar (IIMM) commence from 2011. While the ICJ case references the 2016 “clearance operations” for the purposes of the case (as does the International Criminal Court investigation), it is arguable that the events leading up to 2016 are relevant to establish elements of the crime of genocide – in particular planning and state policies – evidence of which could be found in the information held by Facebook.
Facebook is also concerned that the “…application raises serious foreign policy and international comity concerns.” (page 12). While understanding this is a component of the case to be made against discovery under the statute, this statement – in opposing disclosure in a case undertaken pursuant to the Genocide Convention and by a state under the mantle of erga omnes obligations – is ironic.
Lastly, from a recent Reuters report:
On Thursday, a spokesperson said Facebook “stands against hate and violence, including in Myanmar”.
“We support action against international crimes and are working with the appropriate authorities as they investigate these issues,” the spokesperson said.
The company said it was working with the U.N. Independent Investigative Mechanism for Myanmar, an investigative body that will support any future prosecution in international courts.
The indication by Facebook of cooperation with the IIMM – but obstruction relating to proceedings before the International Court of Justice – raises a number of questions. It is worth noting that the newly created IIMM website indicates – in relation to the ICJ case – that it has commenced “the process of sharing materials relevant to these proceedings, with the consent of the parties that provided the information and documentation.” One inference is voluntariness and the ability to control the information provided, which a court mandated process may interfere with.
There are many questions still to be explored and implications beyond the scope of this particular case.