Judge orders Facebook to hand over Myanmar data for genocide trial

A District of Columbia judge ordered Facebook to let the Gambia government access deleted posts where Myanmar officials promoted hate against the Rohingya people. The order comes more than a year after Facebook rejected a request for the data — which Gambia seeks to use in a genocide case before the International Court of Justice.

Facebook has acknowledged that Myanmar’s military used its app — the country’s de facto portal to the internet — to portray the Rohingya Muslim minority as a terrorist group. Their now-deleted posts encouraged mass murder, displacement, and other human rights abuses. Facebook has provided information separately to the United Nations Independent Investigative Mechanism for Myanmar, but it called Gambian prosecutors’ requests “extraordinarily broad” and invasive.

Magistrate Judge Zia Faruqui found that the relevant Facebook posts weren’t meant as private communications that might get extra legal protection. “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,” the order says. “Making their accounts and pages private would have defeated their goal of inflaming hate in the widest possible audience.”

The order doesn’t criticize Facebook for deleting the content from public view, but it says Facebook hasn’t shown that handing over private backups of it now would be burdensome or violate the users’ privacy. “Facebook taking up the mantle of privacy rights is rich with irony. News sites have entire sections dedicated to Facebook’s sordid history of privacy scandals,” Faruqui wrote.

Facebook must also produce any non-legally privileged records from its investigation into the role Facebook played in the genocide. The records could help prosecutors understand how Facebook connected “seemingly unrelated” accounts to Myanmar government officials, including which accounts were operated out of the same locations. The judge rejected Gambia’s request for a deposition where Facebook would explain the documents.

Judge Faruqui said in the order that he “came to praise Facebook, not to bury it.” But he criticized the company for failing to cooperate with the Gambian government. “Facebook can act now. It took the first step by deleting the content that fueled a genocide. Yet it has stumbled at the next step, sharing that content,” he wrote. “Failing to do so here would compound the tragedy that has befallen the Rohingya.”