Facebook must walk the talk on Myanmar
Last month, Facebook moved to block a bid by The Gambia in a US court, in which it sought disclosure of posts and communications by members of Myanmar's military and police. This legal step is related to a case brought by The Gambia before the International Court of Justice (ICJ), in which it has accused Myanmar of genocide against its Rohingya Muslim minority.
The social media giant urged the US District Court for the District of Columbia to reject the "extraordinarily broad" request, saying it would violate a US law that bars electronic communication services from disclosing users' communications.
In a consequent public statement, Facebook confirmed that it would not comply with The Gambia's demand, but claimed to be cooperating with the United Nations Independent Investigative Mechanism for Myanmar (IIMM) - an investigative body established to collect and analyse evidence of serious international crimes committed in Myanmar.
A few days later, however, this was refuted by the IIMM head Nicholas Koumjian. Koumjian explained that while Facebook has indeed been in talks with the IIMM for a year, it had failed to share "highly relevant" material that could be "probative of serious international crimes" with the investigators. Again, a few days after this, there were reports - confirmed by the IIMM - that Facebook has shared the first data set that only "partially complies" with requests from the IIMM.
Facebook has stated that it supports "action against international crimes" by working with the appropriate authorities. However, this series of actions on the part of Facebook may lead to the opposite conclusion, and rather than supporting The Gambia's legal efforts to bring the perpetrators to justice, is obstructing a case relating to genocide.
In August 2017, the Myanmar military launched a so-called "clearance operation" in Rakhine State, home to Rohingya and other ethnic minorities. Over several weeks, soldiers committed atrocities in the region, killing thousands, committing mass rapes, burning villages to the ground, and driving more than 700,000 Rohingya to flee into neighbouring Bangladesh.
Since then, it has been established that Facebook was used as a medium for the dissemination of hate speech as a precursor to these atrocities. In September 2018, in a report on the situation in Myanmar, the UN Independent International Fact-Finding Mission on Myanmar highlighted the role Facebook played in creating an enabling environment in the country for the commission of atrocities.
Around the time of the release of the report, Facebook suspended several Myanmar military accounts, including that of the head of the army, and subsequently commissioned a human rights impact assessment into its Myanmar operations. The latter was quite tepid, and the former, a case of too little, too late.
In November 2019, The Gambia filed an application at the ICJ, claiming that a conflict exists between it and Myanmar regarding the interpretation and application of the Genocide Convention, based on how Myanmar was treating the Rohingya population, which The Gambia claimed rose to the level of genocidal acts.
This was a legally unprecedented move - the first instance where a case was filed by a state not directly affected by the international crimes alleged. Nevertheless, The Gambia obtained an initial positive ruling this January from the court - a ruling relating to protective measures, which includes directions to Myanmar to cease and desist from certain actions that would violate the Genocide Convention, and to provide the court with regular updates on its compliance with the order.
However, The Gambia needs to take many more steps and overcome several hurdles to bring the case to a successful conclusion. One of these steps is to obtain more evidence that demonstrates the Myanmar military's "genocidal intent" against the Rohingya. One likely repository of such evidence is Facebook.
Knowing that there is a trove of information accessible only to Facebook, which may shed light on various aspects of the international crimes alleged, in June 2020, The Gambia initiated legal proceedings in the US, to compel the company to hand over information that would be of assistance for the case before the international court.
The request, made in accordance with a US federal statute, was opposed by Facebook because it violates a US law that "protects billions of global internet users from violations of their right to privacy and freedom of expression".
However, the provisions of the law invoked - Stored Communications Act, 18 USC 2702(a) - do not seem to be a complete bar to sharing the information. As argued by The Gambia in response to the opposition by Facebook in court, the act aims to protect the privacy of private individuals in the US and not the unlawful acts of state actors such as the Myanmar government. Moreover, it would not apply to information already removed from the system - which is much of what is being requested - given the prior removal for violating Facebook's own terms and conditions.
The optics of not supporting the disclosure of evidence that may assist in establishing the crime of genocide are truly terrible. As bad, is the obfuscation that seems to accompany this position. Facebook, a company that has built its entire business model on monetising user data, is likely aware of this.
August marked the third anniversary of the mass exodus and atrocities committed against the Rohingya - a time for reflection - and a time to act in support of the survivors, in their quest for accountability and justice. Facebook must walk the talk now.
Priya Pillai is an international lawyer, and head of the Asia Justice Coalition secretariat.