Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 22 of 32
something
on
Facebook,
how
do
I
choose
who
can
see
it?,
https://www.facebook.com/help/120939471321735/ (last visited Sept. 19, 2021).
Facebook,
Although
“private” groups and pages requires an administrator to grant access to the content, such forums
can still reach thousands to millions of followers. See, e.g., A group where we all pretend to be
ants in an ant colony, Facebook, https://www.facebook.com/groups/1416375691836223/ (1.8
million members as of Sept. 19, 2021). Administrators can automatically grant access to every
requestor, such that a private group effectively becomes public. See How do I automatically
approve
members
to
join
my
Facebook
group?,
Facebook,
https://www.facebook.com/help/540954519763978 (last visited Sept. 19, 2021).
There is no magic number of accessible viewers for content to trigger the consent
exception. The consent analysis instead turns on the fact-intensive inquiry as to “whether the posts
had been configured by the user as being ‘sufficiently restricted that they are not readily available
to the general public.’” Facebook, 417 P.3d at 743 (quoting Crispin, 717 F. Supp. 2d at 991). At
bottom, the Court is looking to discern the user’s “intent” as to the public versus private nature of
the post. Id. at 747.
The relevant facts are undisputed here. The parties agree that the content in question was
inauthentic accounts and pages Myanmar authorities created with the intent of “spread[ing] hate
speech, fake news, and misinformation for political gain.” HRIA at 13. Although some of the
pages were nominally private, the Myanmar officials intended their reach to be public, and in fact
they reached an audience of nearly 12 million followers. See De-platforming Post. Making their
accounts and pages private would have defeated their goal of inflaming hate in the widest possible
audience. See Facebook, 417 P.3d at 747. It is the rare case here that the authors nakedly displayed
their intent to reach the public and such intent was independently confirmed. See U.N. Report at
22