Republic of the Gambia v. Facebook, Inc.

• Decision Date: 22 September 2021
• Docket Number: Civil Action No. 20-mc-36-JEB-ZMF
• Citation: 567 F.Supp.3d 291
• Parties: In re Application Pursuant to 28 U.S.C. § 1782 of The REPUBLIC OF THE GAMBIA, Petitioner, v. FACEBOOK, INC., Respondent.
• Court: U.S. District Court — District of Columbia

567 F.Supp.3d 291

In re Application Pursuant to 28 U.S.C. § 1782 of The REPUBLIC OF THE GAMBIA, Petitioner,

v.FACEBOOK, INC., Respondent.

Civil Action No. 20-mc-36-JEB-ZMF

United States District Court, District of Columbia.

Signed September 22, 2021

Timothy P. O'Toole, Aiysha S. Hussain, Marcus A.R. Childress, Miller & Chevalier, Chartered, Washington, DC, for Petitioner.

Joshua S. Lipshutz, Gibson, Dunn & Crutcher, LLP, Washington, DC, Natalie J. Hausknecht, Pro Hac Vice, Denver, CO, for Respondent.

ORDER

ZIA M. FARUQUI, UNITED STATES MAGISTRATE JUDGE

I come to praise Facebook, not to bury it. By Facebook's own admission it was "too slow to respond to the concerns raised" about its role in the genocide of the Rohingya, an ethnic and religious minority in Myanmar. Steve Stecklow, Why Facebook is losing the war on hate speech in Myanmar , Reuters (Aug. 15, 2018), https://www.reuters.com/investigates/special-report/myanmar-facebook-hate/. In 2018, roughly six years into the genocide, Facebook began deleting accounts and other content from its platform used by Myanmar government agents that sparked the genocide. See Removing Myanmar Military Officials From Facebook , Facebook (Aug. 28, 2018), https://about.fb.com/news/2018/08/removing-myanmar-officials/ (last updated Dec. 18, 2018) ("De-platforming Post").

Pursuant to 28 U.S.C. § 1782, The Republic of The Gambia ("The Gambia") seeks the content Facebook deleted for use in The Gambia's litigation against the Republic of the Union of Myanmar ("Myanmar") at the International Court of Justice ("ICJ"). The Gambia seeks these records for "evidence of genocidal intent necessary to support a finding of responsibility for genocide" of the Rohingya. See ECF No. 1, Ex. 1 (Pet'r’s Mot.) at 8. Facebook argues that The Gambia's request: (1) violates the Stored Communications Act ("SCA"), and (2) is unduly burdensome. See ECF No. 8 (Resp't’s Opp'n). After several rounds of briefing, The Gambia's motion is now ripe for resolution.¹ The Court GRANTS The Gambia's application in part and DENIES it in part.

I. BACKGROUND

A. Rohingya Genocide

In November 2019, The Gambia instituted proceedings against Myanmar at the ICJ. See Pet'r’s Mot. at 1. The Gambia seeks to hold Myanmar accountable for the crime of genocide against the Rohingya.² See id. The ICJ has jurisdiction to adjudicate disputes over the responsibility of a State for genocide under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. See id. at 6.

According to the Independent International Fact-Finding Mission on Myanmar of the United Nations Human Rights Council ("U.N. Mission"), the Rohingya were "in a situation of severe, systemic and institutionalised oppression from birth to death" due to "State policies and practices implemented over decades." Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar , A/HRC/39/CRP.2 at ¶ 458, United Nations Human Rights Council (Sept. 17, 2018) ("U.N. Report"). "The Myanmar military and other security forces committed human rights violations on a colossal scale, in violation of all basic tenets of international law. The operations had a devastating impact on the Rohingya civilian population, which was targeted, brutalised and terrorised." Id. at ¶ 883. Indeed, the "level of oppression faced by the Rohingya is hard to fathom." Id. at ¶ 622. "[T]his oppressive climate, and the fear and desperation resulting from it," are the context for the "episodes of violence in 2012, 2016 and 2017." Id. at ¶ 622.

In 2012, violence erupted in the Rakhine State, where the Rohingya Muslims lived. Id. at ¶ 624. "The violence saw the burning and looting of houses, murders, summary executions and large-scale displacement affecting both ethnic Rakhine and Muslims." Id. at ¶ 643. The U.N. Mission "conclude[d] that the 2012 and 2013 violence in Rakhine State was pre-planned and instigated and that the Myanmar security forces were actively involved and complicit." Id. at ¶ 747.

Beginning in October 2016, the Myanmar military carried out so-called "clearance operations" constituting systematic mass executions, disappearances, detention, and torture of Rohingya civilians, and the destruction of homes, mosques, and Qurans. See id. at ¶¶ 1069–95. "In addition to ... mass targeted killings, members of the security forces shot individual persons, including at point blank range, and executed people, including those injured, by slitting their throats using long knives." Id. at ¶ 893. "Infants and children were frequently killed by gunfire, stabbed or burned to death." Id. at ¶ 942. "Another feature of the ‘clearance operations’ was the widespread destruction of Rohingya homes and villages, causing further death and injury through burning.... Death by burning in this manner disproportionately affected vulnerable persons less able to run and escape from the ‘clearance operations,’ including the elderly, disabled, young children and pregnant women." Id. at ¶ 905. Myanmar military forces "perpetrated on a massive scale" "[r]ape and other sexual and gender-based violence ... includ[ing] mass gang rapes, sexually humiliating acts, sexual slavery and sexual mutilations." Id. at ¶ 920. "Many of the women and girls had infants and children with them, who were killed or severely injured, while their mothers were raped." Id. at ¶ 924. "Many victims were killed after being raped. Most had their throats slit, or were burned to death." Id. at ¶ 927.

The U.N. Mission concluded Myanmar intended to eradicate the Rohingya. Id. at ¶¶ 1439–41. Multiple other international human rights organizations likewise concluded that Myanmar's actions constituted genocide. See Pet'r’s Mot. at 4–6.

B. Facebook's Role In The Genocide

The U.N. Mission found that Facebook has been "by far the most common social media platform in use in Myanmar" since 2012. U.N. Report at ¶ 1344. "Facebook [was] the main, if not only, platform for online news." Id. at ¶ 1345. The Myanmar officials "rel[ied] on Facebook to release news and information" and media outlets "use[d] Facebook as a main way of disseminating articles." Id.

In October 2018, Facebook commissioned a human rights impact assessment (HRIA)³ of its presence in Myanmar. It too revealed that, in Myanmar, "Facebook is the internet." HRIA at 12. Undoubtedly Facebook had "a powerful democratizing effect in Myanmar by exposing millions of people to concepts like democracy and human rights." Id. However, "[d]igital literacy [was] generally low across the country, and many people [found] it difficult to verify or differentiate content (for example, real news from misinformation)." Id. Myanmar officials were therefore able to credibly "spread rumors about people and events" via Facebook. Id. at 13.

Facebook content "contributed to shaping public opinion on the Rohingya and Muslims more generally," U.N. Report at ¶ 696, and was used "to spread anti-Muslim, anti-Rohingya, and anti-activist sentiment," HRIA at 24. Specifically, "organized groups [made] use of multiple fake accounts and news pages to spread hate speech, fake news, and misinformation for political gain." Id. at 13. The viral spread of disinformation on Facebook led to instances of "communal violence and mob justice." Id.

The U.N. Mission concluded that Myanmar officials weaponized Facebook for "a carefully crafted hate campaign [to] develop[ ] a negative perception of Muslims among the broad population in Myanmar." U.N. Report at ¶ 696. This hate campaign portrayed "the Rohingya and other Muslims as an existential threat to Myanmar and to Buddhism. In the case of the Rohingya, it [went] a step further. It [was] accompanied by dehumanising language and the branding of the entire community as ‘illegal ... immigrants.’ " Id. For example, on June 1, 2012, Zaw Htay, the spokesperson for the President of Myanmar, posted a statement advocating for the destruction of the Rohingya to his personal Facebook account:

Rohingya terrorists as members of the [Rohingya Solidarity Organization] are crossing the border into Myanmar with weapons.... Our troops have received the news in advance so they will completely destroy them [the Rohingya]. It can be assumed that the troops are already destroying them [the Rohingya]. We don't want to hear any humanitarian or human rights excuses. We don't want to hear your moral superiority, or so-called peace and loving kindness. (Go and look at Buthidaung, Maungdaw areas in Rakhine State. Our ethnic people are in constant fear in their own land. I feel very bitter about this. This is our country. This is our land.) (I'm talking to you, national parties, MPs, civil societies, who are always opposing the President and the Government.)

Id. at ¶ 705. The U.N. Mission determined that "[a]lthough this post was later deleted, the impact of a high[-ranking] official equating the Rohingya population with terrorism may have been significant ahead of the 2012 violence, which erupted a week later." Id. at ¶ 706. Ultimately, "[t]his discourse created a conducive environment for the 2012 and 2013 anti-Muslim violence ... and subsequent waves of State-led violence in 2016 and 2017." Id. at ¶ 696.

In August 2018, Facebook acknowledged that the "ethnic violence in Myanmar [was] horrific" and that Facebook was "too slow to prevent misinformation and hate." Sara Su, Update on Myanmar , Facebook (Aug. 15, 2018), https://about.fb.com/news/2018/08/update-on-myanmar/. In August 2018, Facebook deleted and banned the accounts of key individuals and organizations in Myanmar—including the commander-in-chief of Myanmar's armed forces and the military's television network. See De-platforming Post. Facebook also deleted "seemingly independent news and opinion Pages [that] covertly push[ed] the messages of the Myanmar military." Id. Facebook determined that Myanmar officials surreptitiously controlled these facially unassociated accounts, which qualified as "coordinated inauthentic behavior" in...