Case 1:20-mc-00036-JEB-DAR Document 10 Filed 08/18/20 Page 20 of 29 II. Under the SCA the requested content is excepted from the statute’s prohibitions and can be permissibly disclosed. Even assuming the SCA applies, Facebook is still wrong in its claim that it is “prohibited” from disclosure under the statute. To the contrary, Facebook ignores at least two statutory exemptions that would clearly allow it to voluntarily disclose the information The Gambia has requested if it wanted to do so. Opp’n 2. Section 2702(b)(5) permits ECS providers to “divulge the contents of a communication” where it is necessary to the performance of the service or to protect its property rights, and section 2703(b)(3) permits disclosure where the originator of the communication has impliedly consented to disclosure. As we discuss below, each could properly and easily be invoked by Facebook if it wanted to disclose the information, and this Court should correct any misimpression on Facebook’s part that disclosure of these materials is somehow “prohibited” by the SCA. a. Facebook can permissibly disclose the requested information under section 18 U.S.C. § 2702(b)(5). Facebook is not “prohibited” from voluntarily releasing the information The Gambia has requested under section 2702(b)(5). Publicly, Facebook states that it “it has announced its willingness to assist accountability efforts regarding Myanmar,” but U.S. law prevents it from fulfilling this desire. Opp’n 6. As The Gambia has presented in Section I of this brief, the SCA does not apply to foreign governments or its officials and agents who are misusing the platform – i.e., that are not using it in a way that is “duly authorized.” But even if the SCA applied, Facebook may permissibly release the requested information if it wanted to “as may be necessarily incident … to [protect its rights or property].” See 18 U.S.C. § 2702(b)(5). As stated previously, Facebook’s own terms of use notify users of its rights to disclose information where Facebook has a “good-faith belief” disclosure is “necessary to [] detect, prevent and address” 14