A federal judge ordered Facebook to turn over data Wednesday related to accounts it deleted in 2018 that fueled Burma's genocidal crackdown on Rohingya Muslims, issuing one of the first legal rulings establishing U.S. technology giants' obligations after they remove content on their platforms.
U.S. Magistrate Judge Zia M. Faruqui of Washington, D.C., ruled that once providers permanently take down accounts, federal privacy law does not apply to user information. The sweeping opinion is not binding as precedent and can be appealed, but it could have wide impact on investigators seeking content that has been removed by social media services, such as in the Jan. 6 assault on the U.S. Capitol, analysts said.
The nation of Gambia asked a U.S. court in June 2020 to compel Facebook to release records related to accounts set up by Burma military leaders, police agencies and others that Facebook shut down in 2018, seeking evidence of "genocidal intent" in a human rights claim filed by the west African country in international court.
Facebook objected, citing user privacy laws. The judge challenged the company "to live up to its words" about the need to remediate its role in Burma's 2017 purge of 750,000 Muslims in a campaign of rape, murder and razed villages.
Burma is often called Myanmar, a name that military authorities adopted in 1989. Some nations, such as the United States and Britain, have refused to adopt the name change.
User privacy cannot be invoked as an excuse to withhold data deleted but preserved by a provider, the decision suggested, or to avert a reckoning for events that caused societal harm.
With more than 2 billion users, Facebook has faced a firestorm over the weaponization of its site by bad actors, with the Wall Street Journal reporting last week that employees raised alarms about the company's limited efforts to check misuse it knew about in developing countries.
University of California at Berkeley law professor Orin Kerr said Wednesday's opinion highlighted the need for higher courts and Congress to update the 35-year-old Stored Communications Act.
The law, enacted to establish privacy protections in electronic communications, sets limits on what information communications and cloud computing service providers can disclose about their customers and subscribers.
Courts now generally hold that the government requires a search warrant to access the content of unopened emails, but remain split over basic questions such as whether the law's protections apply to opened emails or backup copies stored by companies.
Faruqui's opinion makes a provocative ruling that the law's protections stop applying when Internet providers no longer make files available to users by deleting them.
In August 2018, Facebook began deleting and banning accounts of key individuals and organizations in Burma, acknowledging that its platform was used to "foment division and incite offline violence" that a U.N. mission found colossal in scale.
A Facebook review concluded that nearly 12 million Burmese people followed pages, groups and accounts that engaged in "coordinated inauthentic behavior" and were set up by users including the commander in chief of Burma's armed forces, the military's television network and "independent" sources secretly controlled by government officials.
Using fake accounts and news pages, groups spread hate speech casting Rohingya, Muslims and their defenders as illegal immigrants, terrorists and an existential threat to Burma and to Buddhism, leading to mob violence, a U.N. investigation concluded.
Facebook preserved the content it deleted and sponsored an independent internal review. But it opposed Gambia's request last year to cooperate with the International Court of Justice probe.
Gambia asked for documents about how Facebook identified the content for deletion, and public and private communications associated with the deleted content.
Facebook argued that under the interpretation of the law accepted by the court, any time a provider deactivates a user's account for any reason, a user's communications would become available for disclosure to anyone.
It has worked with U.N. investigators on Burma, calling it a way to voluntarily assist international accountability efforts, including Gambia's case at the International Court of Justice.
But the court concluded that the law already permits providers to make unilateral determinations about "disclos[ing] records, information, and contents of accounts"; that law enforcement can already access content using search warrants; and that the narrow category of requested content raised minimal concerns.
Users can permanently delete their own communications, making them generally unrecoverable or join sites that do not moderate content, the judge noted.