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Facebook’s parent company, Meta, must identify all groups, pages and individual accounts that posted COVID-19 vaccine content that violated Facebook’s COVID-19 misinformation policy, the Superior Court of the District of Columbia ruled last week.

The Sept. 14 ruling upheld a Washington, D.C., government subpoena, originally served to Meta in June 2021 by D.C. Attorney General Karl Racine. The subpoena was intended “to determine whether the company has kept its word about reducing vaccine misinformation on its platform.”

According to Politico, the subpoena also called on Facebook “to provide records identifying all groups, pages and accounts that have violated its policies against COVID-19 misinformation and documents detailing how many resources the tech giant has devoted to the cause.”

As noted in the D.C. appeals court decision in Meta Platforms Inc. v. District of Columbia, the subpoena is part of an investigation into “potential violations of the Consumer Protection Procedures Act [CPPA].”

The court found that “Meta has misrepresented to the District’s consumers the degree to which it polices misinformation posted to its platform about the COVID-19 vaccine.”

Meta argued the subpoena violated its First Amendment rights by “prob[ing] and penaliz[ing]” its ability to perform editorial control over content posted on its platforms, while also violating its users’ First Amendment rights on the basis that it would dissuade them from participating in future discussions on controversial topics.

Meta also argued it was protected by the Stored Communications Act (SCA). According to Reclaim The Net, the SCA provides “Fourth Amendment-like privacy protections by statute to communications held by third party service providers.”

The D.C. appeals court ruling by trial Judge Anthony C. Epstein rejected these arguments, however, Bloomberg Law reported. It characterized the D.C. attorney general’s request as “reasonably relevant” and “narrowly tailored to the government’s asserted interest.”

According to the ruling, Meta did not demonstrate that the subpoena will chill the constitutional rights of the company or its users — because “the users who made these posts have already openly associated themselves with their espoused views by publicly posting them to Facebook.”

The subpoena “does not require Meta to ‘unmask’ any anonymous Users,” the court said.

Greg Glaser, a California-based attorney with expertise on privacy issues, said the case is an example of Big Pharma’s influence on politics.

Glaser told The Defender:

“When you read between the lines of this case, what’s really happening is pharma-sponsored politics. An overzealous, vaccine-mandating, hard-left government entity in the District of Columbia is attempting to misuse local consumer protection laws to obtain the ‘identities’ of Meta users who criticized vaccines on a platform known for censorship.”

According to Glaser, “The SCA is a federal law that recognizes the obvious fact that Americans routinely share their private information with companies online and expect that information will remain private,” Glaser said.

“This lawsuit will decide whether that is still true, or whether and how Meta reveals your identity to the government in this dragnet lawsuit. The government has of course promised it will keep users’ private information confidential (meaning limited to the review of the case lawyers and the court),” he added.

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‘It’s a shakedown’

According to Reclaim the Net, “Millions of users, many of whom made truthful statements that challenged the government’s COVID narrative, are likely to be swept up in this government data grab due to the scope of Facebook’s ‘COVID-19 misinformation’ rules and the number of users that were impacted by them.”

“It’s a shakedown, and because it’s happening in Washington D.C., the government is predictably getting its way while ignoring the privacy rights of Americans,” Glaser said.

Politico reported in July 2021 that, as part of the subpoena, Racine called on Facebook to release the results of an internal study it conducted earlier that year examining “vaccine hesitancy” among its users. The study was publicly revealed by The Washington Post in March 2021.

In February 2021, Facebook — then not yet known as Meta — announced it would take tougher action against “misinformation” related to COVID-19, including vaccines.

According to Axios, the subpoena also asked Meta for “Documents identifying Facebook groups, pages and accounts that have violated the company’s COVID-19 misinformation policy related to vaccines,” and “The total volume of content that has been removed or demoted by Facebook for violating the vaccine misinformation policy.”

A request for “Details on the resources Facebook is devoting to combatting vaccine misinformation, including identifying the volume of content awaiting,” was also included in the subpoena.

“Facebook has said it’s taking action to address the proliferation of COVID-19 vaccine misinformation on its site,” Abbie McDonough, director of communications for Racine, told Politico in July 2021. “But then when pressed to show its work, Facebook refused.”

“AG Racine’s investigation aims to make sure Facebook is truly taking all steps possible to minimize vaccine misinformation on its site and support public health,” she added.

In response, Facebook spokesperson Andy Stone said in a statement quoted by Politico in July 2021 that the platform had “removed more than 18 million pieces of content on Facebook and Instagram that violate our COVID-19 and vaccine misinformation policies and labeled more than 167 million pieces of COVID-19 content rated false by our network of fact checking partners.”

In November 2021, following Meta’s refusal to comply with the subpoena, the D.C. Office of the Attorney General petitioned the D.C. Superior Court to enforce the subpoena. The petition was granted in March 2022, finding that “this request for public posts is a reasonable and lawful exercise of the District’s subpoena power” consistent with the SCA and the First Amendment.

“First, the District has a compelling interest in investigating a company has made false and misleading statements that violate the CPPA. Consumers and other members of the public have a strong interest in complete and accurate information about Meta’s efforts to limit vaccine misinformation,” the Superior Court ruled at the time.

Oral arguments in Meta’s appeal were heard on Jan. 31, resulting in the Sept. 14 D.C. appeals court ruling.

According to Reclaim the Net, “Facebook’s COVID-19 misinformation rules prohibited many truthful statements during the pandemic. For example, at one point claiming that “vaccines are not effective at preventing the disease they are meant to protect against” was banned — an assertion that health officials have now reluctantly admitted is true.”

A tranche of documents released earlier this month as part of the “Facebook Files” revealed that the platform caved to pressure from the Biden administration to censor the accounts of individuals included in the so-called “Disinformation Dozen,” a list of people who contradicted the government’s COVID-19 narrative and vaccine-related policies.

Included among the “Disinformation Dozen” is Robert F. Kennedy Jr., chairman on leave from Children’s Health Defense (CHD). CHD sued Facebook in August 2020 and filed an amended complaint in December 2020. The U.S. District Court for the Northern District of California dismissed the case in June 2021.

CHD later appealed, and oral arguments were heard in May 2022. A ruling is pending.

Distinction between public and non-public communications

Legal experts who spoke with The Defender said last week’s D.C. appeals court decision is a mixed bag for users of Meta’s social media platforms.

W. Scott McCollough, a Texas-based technology attorney, said, “States have long had administrative subpoena powers, and state attorneys general in particular have broad consumer protection enforcement powers, including subpoenas.”

“When I was with the Texas Attorney General’s Consumer Protection Division, I issued several subpoenas and never had one quashed,” he added.

According to McCollough, the practice of electronic platforms turning over user records to governmental or legal authorities is not new.

“All electronic and stored service providers have been required to turn over subscriber and transactional information with subpoena or court order (less than a probable cause warrant) for a very long time,” he said, referring to 18 U.S.C. §2703(c)(1), (2).

According to this statute, a warrant is required only to obtain “the contents of any wire or electronic communication,” with “contents” defined as “any information concerning the substance, purport, or meaning of that communication.”

“Current federal and most state laws provide that a warrant is not required for anything other than content. Subpoena or court order suffices, on less than probable cause. And even those are not necessary if there has been user consent,” McCollough said.

As a result, the D.C. appeals court reached a correct decision in terms of what the law says, legal experts told The Defender.

“The court got the SCA analysis correct, once you accept … the court’s assumption that the only postings at issue were those that were ‘so widely accessible as to be functionally public.’ Public posts constitute consent,” McCollough said.

“A much different result would be obtained for non-public communications, like private groups, person-to-person messaging or something like an email. A warrant would be required for that content.” he added. “This is how the SCA works.”

McCollough said the subpoena did not violate Meta’s First Amendment rights, because “These platforms are conduits and are not themselves the speaker. … They do have the right to free speech. But it has to be their speech.”

Nor were users’ First Amendment rights violated, McCollough said, “because we are apparently talking only about public posts.”

Glaser noted that while the subpoena could be “vague and overly broad if misinterpreted,” footnote 11 of the D.C. appeals court decision “does not require Meta to ‘unmask’ any anonymous users, as it requires Meta to produce ‘only the identities that these users themselves employed in public posts.’”

“The issue is privacy. … Speech and privacy have associational components,” McCollough said. “But there is a basic rule: If you want to keep something secret, then don’t make it public, because you cannot have any further expectation of privacy.”

“There is some albeit minimal consolation for Meta users’ privacy here,” Glaser said. “The parties did concede that some agreement could be reached to protect non-public posts from disclosure.”

But that privacy matter is still unclear because the appeals court was not as “technologically savvy” as it needed to be, Glaser said, noting that Meta stated in its appellate brief that the Superior Court “assumed that public posts would necessarily include accurate identifying information because Meta’s rules require users to identify themselves using the same name they use in everyday life.”

The company conceded, however, that some users don’t accurately identify themselves, adding that the D.C. attorney general’s request for information “sufficient to identify … the identity of any individuals or entities” that posted “vaccine-related misinformation” may end up including “non-public addresses or phone numbers provided only to Meta.”

In their appellant brief, Meta lawyers argued this “does implicate the robust right to ‘remain anonymous.’” Meta further reiterated this in its reply brief, noting an “‘author’s decision to remain anonymous’ is itself ‘an aspect of the freedom of speech protected by the First Amendment.’”

Accordingly, “Users need to be more mindful about keeping things private if they want salacious details out of the broader public’s eyes,” McCollough said. “Don’t post things that can be publicly viewed if you don’t want it to blow back at you.”

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Did Meta try hard enough?

Glaser said it’s encouraging to see Meta’s lawyers “argue with gusto for free speech and privacy rights of users,” also pointed out that “Meta has a ‘life-depends-on-it’ financial incentive here to protect its users’ privacy rights … because without those rights, the entire Meta userbase would drop Meta like a hot potato.”

“Normal people expect that a warrant is necessary before their person, papers, and effects can be turned over to the government,” he said.

McCollough told The Defender “Meta has no ethics or moral compunction, and they do not care about user privacy. Meta directly feeds all this to the federal government on an almost instantaneous basis and without a warrant or subpoena. Their entire business model is about gathering and then monetizing user data.”

“The platforms have on occasion championed user privacy. Sometimes for the right reasons, but usually it is convenient to their other strategic goals,” McCollough said. “They are opportunistic, but that is not unique to them, especially in politics.”

“At most, Meta contested this subpoena simply because they don’t want to bother with nettlesome state and local authorities and prefer to deal only with a national surveillance apparatus,” McCollough added.

For McCollough and Glaser, Meta’s legal arguments against the subpoena were, indeed, less than robust.

“I would be more willing than Meta was to find improper censorious motive by the D.C. attorney general,” McCollough said. “Meta, for some reason, chose not to raise other arguments that could have had merit.”

“Even after the narrowing to only public posts, that was a burdensome, overbroad and vague request, and it imposed a duty of subjective judgment on Meta by demanding ‘all Facebook groups, pages, and accounts,’” he said, “It basically required Meta to go through all posts and make a post-hoc decision whether there was a violation.”

“That subpoena should not have been enforced based on standard discovery rules,” McCollough said. “But Meta waived or did not bring forward these issues.”

“Since Meta did not pursue bad faith or improper motive, I don’t think the stated bases to quash the subpoena were valid. But if they had pushed motive or intent, the outcome might have been different.”

McCollough also noted that Meta, in its legal documents, asserted its “public statements about content moderation were mere ‘puffery.’” As a result, “Meta therefore admits it was engaging in the ‘questionable practice of downplaying negative business traits and overemphasizing the positive ones.’”

Yet, “The court went light on them for this,” McCollough said. “The real court — that of public opinion — should not reward them for this chicanery. Meta was huffing about a subpoena that exposed their puffing.”

Meta also claimed the subpoena interfered with its ability to exercise editorial control over content on its platform.

As reported by The Guardian in 2018, “Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company.”

But in legal arguments, Facebook has repeatedly argued, it’s “a publisher, and a company that makes editorial decisions, which are protected by the First Amendment.”

This argument has significant legal implications in the U.S. Under Section 230 of the Communications Decency Act, social media companies and other electronic platforms are shielded from lawsuits regarding content posted by their users.

Privacy of social media users in jeopardy?

Even if the D.C. appeals court ruling were legally correct, the privacy of social media users may still be at risk, legal experts told The Defender.

“If allowed to stand, the appeals court ruling will invade online user privacy and therefore chill the free speech of anyone paying attention,” Glaser said.

McCollough said, “I worry about the abuse of the subpoena power. The attorney general was looking to identify vaccine skeptics and then punish them by coercing Meta into censoring them completely or setting up to go after the users with non-conforming viewpoints in other ways.”

“The D.C. appeals court panel ruled correctly on both legal issues presented to them,” McCollough said, adding:

“But that is largely because of how the case was framed from the beginning. Meta and the D.C. attorney general both deserve shame, not the court. This may have been all for show by both of them. Posturing, puffery and virtue signaling all around, with improper intent underneath each side.”

“The D.C Attorney General should not have started this,” he said, “but Meta’s legal claims were borderline frivolous and the company failed to bring forward better arguments that could have limited the scope of the subpoena.”

Glaser said Meta is expected to appeal to the U.S. Supreme Court. McCollough said the tech platform can seek panel or en banc rehearing. “But frankly, their case was a loser, given the way they chose to frame it.”