D.C. Judge Allows Subpoena of Facebook COVID Misinformation Blocking Records

From a decision in D.C. v. Meta Platforms, Inc.Anthony Epstein from D.C. Superior Judge, sent earlier this month. It has just been posted to Westlaw

The Court grants the District of Columbia’s petition for enforcement of an investigative subpoena to Meta Platforms, Inc., formerly known as Facebook, Inc. ….

The District is responsible for enforcing the D.C. Consumer Protection Procedures Act (“CPPA”) through the Office of the Advocate General (“OAG”). OAG is looking into whether Meta made false or misleading statements in public about how it attempted to enforce its content moderation policies, which prohibits misinformation regarding COVID-19 vaccines.

OAG sent Meta an investigative subpoena. This sought, amongst other things, to investigate. [in Request No. 2]Meta identified the Facebook users who violated their content moderation policies to prevent misinformation from spreading via public posts.[:]

{Documents sufficient to identify all Facebook groups, pages, and accounts that have violated Facebook’s COVID-19 misinformation policy with respect to content concerning vaccines, including the identity of any individuals or entities associated with the groups, pages, and accounts; the nature of the violation(s); and the consequences imposed by Facebook for the violation, including whether content was removed or banned from these sources.}

Meta did not disclose the information. According to the Court, the District made this request for information in a lawful and reasonable exercise of its subpoena power. It is also consistent with the federal Stored Communications Act (SCA). [details of this omitted -EV] and with the First Amendment ….

Meta alleges that District is trying to target and unsmaak private citizens on the basis of a regulator’s disapproval over the content of their online speech. Meta is the real target of District’s investigation, however. Meta, not the District, was responsible for identifying individual Facebook users who were publicly spreading misinformation regarding COVID-19 vaccinations.

OAG’s probe focuses not on false or misleading public statements by Meta about enforcement, but on false or misleading comments made by Facebook users about vaccines. Meta doesn’t dispute, at least not in this instance, that Meta’s public statements regarding its content moderation policies fall within the CPPA. The District also does not dispute the fact that Facebook users have made statements concerning COVID-19 vaccinations that are not covered by the CPPA (unless they are from a COVID-19-supplied merchant).

Nor is the District trying to “unmask” Facebook users—it is simply seeking information about Meta’s enforcement actions against users who were never masked because they publicly posted content about vaccines using the identities that the District seeks to obtain. The Court expects the District to protect, to the extent appropriate, the confiequestdentiality of personal information that it obtains in the course of its investigation.

Meta accuses District as well of “regulating disfavored consumer speech.” Meta’s content moderation policies are the only way to say that either party is regulating consumer expression. Meta is attempting to verify whether Meta’s claims about being aggressive in its regulation of Facebook posts that contain negative information regarding vaccines is misleading. OAG declares that it doesn’t seek to regulate consumer speech. It does not want to penalize any Facebook user who posts information or “moderate” content on Facebook. …

Meta claims that Request No. 2 should be stayed by the Court. 2. Because “the First-Amendment protects Meta’s rights as a private entityTo make content moderation decision about which third-party content it should remove from its platform. Meta was correct. The Court assumed for the purposes of this motion that Meta has the rights to amend and adopt its content moderator policy however it sees fit. The District’s subpoena enforcement would not be in violation of any such right.

The District is only at the information-gathering stage of its investigation, and compliance with the subpoena would have no effect whatsoever on Meta’s content moderation polices or how it applies and enforces them. Meta does not have the right to tell Meta which content it should keep or should be deleted from Facebook. Meta is not allowed to doubt this assertion. The District claims it is looking into Meta’s statements regarding enforcements of its Content Moderation Policies. Meta could not disseminate its preferred message if the subpoena is enforced. Meta does not claim a right under the First Amendment or otherwise to disseminate false or misleading information about whether and how it enforces its content moderation policies….

Meta [also]According to the District, compliance with its subpoena will unmask any users that violate its policies against vaccination misinformation. It would also chill the conduct protected under the First Amendment. The District’s efforts to collect this information is therefore subject to rigorous scrutiny. The government may have to be forced to disclose confidential information regarding activities that are protected by the First Amendment to it. This could lead to a rigorous scrutiny. Although the Court questions the necessity of exacting scrutiny in this instance, where only the information requested by the District is speech posted publicly by Facebook users, the Court assumes that the Court should exercise the same scrutiny for Request No. 2. Even under this standard, the District’s subpoena to Meta passes constitutional muster….

Demand No. For four reasons, Request No.

First, there is a strong interest for the District to investigate a company’s misleading and false statements in violation of the CPPA. Meta’s attempts to reduce vaccine misinformation is something consumers and others want.

OAG’s subpoena to OAG is secondarily narrowed for its investigative purposes. OAG does not want to know the identities of every Facebook user who has posted information on COVID-19 vaccines. OAG only wants information on those Facebook users that Meta determined have violated its vaccine content moderation policies (and not other content moderation policies such as hate speech). These details are relevant in order to determine whether Meta’s statements regarding its implementation of content moderation policies regarding vaccine misinformation have a tendency mislead Facebook users and other members of the public. With respect to COVID-19, the District acknowledges this. vaccineMisinformation, in particular. Facebook has not publicized the total volume, deleted or falsely demoted content, nor the total number of account pages and banned groups.

Meta doesn’t dispute the fact that Meta has publicly stated its determination to enforce its policies as well as about how much content it has removed. OAG offers a plausible explanation to why it sought the identities of Facebook users it found violating its policies. It has information that suggests that only a few users were responsible for vaccine misinformation. OAG wants to evaluate whether or not Facebook has policies in place against repeat violators, people and organizations who have been publicly identified by OAG as repeat violators. The District does not have any other options to investigate whether or how Meta applies its content moderation policies to repeat violators and users that have been publicly identified by being repeat violators.

The identity of these Facebook users is also important. This information, along with the content that they have posted about vaccines, was made public by these Facebook users. Meta was not asked to “unmask users” who post content in violation of its vaccine misinformation content moderation guidelines, as the Court stated. These users posted the content publicly with their identities. The District wants only to see the identities of the users who used them in the public postings. Meta’s terms require that users identify themselves with the same name they use every day. However, even if this is not the case, Meta will give to the District all information that users have provided about their identities.[A]The First Amendment protects the right to free speech.[a]In some cases, anonymous internet speech on blogs and chat rooms can be the modern equivalent to political pamphleteering. Meta discovered that certain posts were not compliant with content moderation guidelines. However, the post authors made it public. Meta has issued a subpoena to the District.

Fourth, the records do not indicate that the District will seek to retaliate against Facebook users who posted vaccine-related content alongside their identities. The record doesn’t suggest that any information about these people will be made public.

However, Meta may make public the identity of these Facebook users in an enforcement action against Meta. Any criticism these users might be exposed to is part of the cost of participating in public debates. Just as the First Amendment allows Facebook users to post information positive or negative about COVID-19, so too does it allow others to comment on those posts. Meta does not provide any evidence to suggest that the individuals or entities that posted negative or positive content which Meta later found violated its content moderators policies (a), were subject to threats, worsening or are more likely to face any other response than verbal criticism. In these circumstances, Meta’s concerns about a chilling effect, on Facebook users who want to post content that is negative or positive about COVID-19 vaccines is speculative….