Gambia seeks US document discovery to support claims of genocide by Myanmar

In June 2020, The Gambia obtained the permission of the District Court of the District of Columbia, United States of America, to serve orders for document production and depositions (subpoenas duces tecum and ad testificandum) on Facebook to retrieve now-deleted Facebook posts that allegedly demonstrate the genocidal intent of officials of the Government of Myanmar against the Rohingya people.

The subpoenas were served under a US statute, 28 USC § 1782, that permits US-style discovery in aid of foreign proceedings.  While commonly used to secure evidence in aid of domestic litigations or investigations in foreign countries, Section 1782 can also be used to obtain evidence that might be relevant to international judicial proceedings.  In this case, The Gambia is seeking the Facebook posts and other information for use before the International Court of Justice in its claims of genocide by Myanmar, in the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).

The servers of large Silicon Valley companies – such as Google, Facebook, Yahoo! and others – are thought to be significant electronic depositaries of stored communications and information from around the world.  However, third party access to this information is governed by the US Stored Communications Act.

Facebook is opposing The Gambia’s subpoenas.  Facebook’s primary argument rests on an immunity from civil proceedings, including civil subpoenas, that is available to certain technology companies that store or publish customer content under the Stored Communications Act.  Facebook states that no applicable statutory exception would allow it to disclose the requested information to The Gambia, and thus it cannot produce the information.  In response to this argument, The Gambia claims that the language of the SCA does not apply to foreign governments and that the SCA does not protect actors who have engaged in unauthorised uses of a provider’s platform, such as genocide.

Facebook also argues that the requests are “overbroad and disproportionate”, a common objection to civil subpoenas in US practice that is often mitigated by narrowing the scope of the subpoena.

A judgment in this matter is still outstanding.