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

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