Case 1:20-mc-00036-JEB-DAR Document 8 Filed 08/04/20 Page 12 of 18
unknown, unidentified people. Specifically, the applicant seeks all “documents and
communications produced, drafted, posted, or published” by numerous Facebook groups, pages,
or accounts belonging to a litany of individuals or entities, none of whom are specifically
identified. O’Toole Decl., Ex. 1, Schedule A (RFP Nos. 1–12). A subpoena purporting to
compel the disclosure of such materials is expressly prohibited by the SCA. See, e.g., Rainsy,
311 F. Supp. 3d at 1114. Indeed, if the U.S. government wished to obtain such information from
Facebook, it would be required to comply with a host of stringent requirements set forth in the
SCA and obtain a warrant supported by probable cause. See 18 U.S.C. § 2703. It would make
little sense for the SCA to allow a foreign government to obtain the same information without
meeting any of those same (or comparably stringent) requirements.
Even the application’s final demand, which seeks “documents relating to any internal
investigations conducted by Facebook of ‘coordinated inauthentic behavior,’” O’Toole Decl.,
Ex. 1, Schedule A. (RFP No. 13), or other “terms of service violations” for various, unidentified
accounts, would require Facebook to respond in a manner that would inevitably reveal
“information concerning the substance, purport, or meaning” of these users’ communications, as
forbidden by the SCA. See 18 U.S.C. § 2510(8). This final request recognizes that such
documents will be responsive only if they pertain to investigations into specific content of
“accounts belonging to or controlled by the Myanmar state officials, representatives, entities or
groups acting in coordination, or suspected of acting in coordination, with Myanmar state
entities,” and thus by definition would reveal how those users’ communications pertain to
restrictions imposed on user content by Facebook. However this request is styled, disclosing that
a specific user sent, posted, or published content about a specific topic that Facebook determined
might violate its terms of service is prohibited by the SCA, as it would “divulge ... the contents
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