Case 1:20-mc-00036-JEB-DAR Document 10 Filed 08/18/20 Page 22 of 29
terms of use from releasing information in extreme circumstances such as these, under the
exception set forth in 2702(b)(5). With such corrective guidance, Facebook can freely choose
whether it wants to continue to assist the Myanmar government, its military generals, and its
government officials in hiding their crimes or whether it wants to help The Gambia expose them
by invoking section 2702(b)(5).
b. Where, as here, a sovereign state and its agents have weaponized the Facebook
platform to broadly communicate hate speech and incite genocide they have
consented to the disclosure of their communications under 18 U.S.C. §
2703(b)(3).
Facebook also takes the position that it cannot release any content under the SCA, even
content that users originally released to the public (but have now been removed due to misuse of
Facebook’s system), and that it does not need to comply with requests that have nothing at all to
do with electronic communications. Opp’n 6. This is clearly incorrect. Section 2702(b)(3)
provides that communications can be disclosed with the “lawful” consent of the originator or
recipient where the communication has a reasonable basis for knowing that their communication
is available to the public.33
In its report on the SCA, the House Judiciary Committee viewed lawful consent
expansively. It explained “lawful consent” could be implied and “need not take the form of a
written document of consent.”34 The report emphasized that “[c]onsent may also flow from a
user having had a reasonable basis for knowing that disclosure or use may be made with respect
to a communication, and having taken action that evidences acquiescence to such disclosure or
33
See, e.g., Facebook, Inc. v. Super. Ct. of the City and Cty. of S.F., 4 Cal. 5th 1245, 1271 (Cal. 2018)
(“[O]ne who posts a communication with a reasonable basis for knowing that it will be available to the
public should be considered to have implicitly consented to such disclosure under section 2702(b)(3).”
(citing Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008)).
34
H.R. Rep. No. 99-647, at 66 (1986).
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