Facebook’s response to the documents being passed on to Damian Collins, Chair of the UK Government’s Select Committee on Digital, Culture, Media and Sport (DCMS), has been to argue that they are subject to a US court order and should be given back unread:
The materials obtained by the DCMS committee are subject to a protective order of the San Mateo Superior Court restricting their disclosure. We have asked the DCMS committee to refrain from reviewing them and to return them to counsel or to Facebook.
Collins in turn argues that as an MP he has Parliamentary privilege:
The House of Commons has the power to order the production of documents within the UK jurisdiction, and a committee of the House can publish such documents if it chooses to, with the protection of parliamentary privilege…this is not a matter before courts in the UK and the sub judice rules are applied very differently in the USA.
That’s a situation that San Mateo County Judge Raymond Swope wants to get some answers to. On Monday, after being informed of what had happened in London, the Judge ordered both Six4Three and Facebook to file new briefs answering some key questions, including what authority DCMS has to overrule his court’s orders and what Constitutional issues are raised by DCMS’s letter?
What answers he gets from Facebook’s lawyers remain to be seen - the company has until midday tomorrow, after the London Committee session has taken place, to respond. But Six4Three’s counsel has filed its response, largely pleading ignorance to what the legal position is regarding DCMS jurisdiction, but providing a lot more color on what happened - or what Six4Three says happened. It states:
On November 19, 2018, Mr. Kramer arrived in London to attend business meetings unrelated to Six4Three. Upon arriving, Mr. Kramer received an email from DCMS, which attached an Order to Produce Documents (“DCMS Order #1”), demanding his compliance no later than 5pm local time on the next day, November 20, 2018…On November 19, 2018, in compliance with Section 16(b) of the Protective Order, Plaintiff’s counsel sent a letter to Mr. Collins and DCMS notifying DCMS that some of the information demanded by DCMS Order #1 was subject to the Protective Order, and notified DCMS that due to the Protective Order’s restrictions Mr. Kramer could not comply with DCMS Order #1…Mr. Kramer understood that he was not permitted to comply with DCMS Order #1 and, more generally, he was not permitted to provide any documents designated confidential or highly confidential by Defendants to DCMS or any other person.
But Collins wasn’t to be deterred it seems:
When Mr. Kramer awoke on November 20, 2018, he was personally served a hard copy of DCMS Order #1 to his hotel room…Mr. Kramer does not know how the DCMS learned where he was staying in London…Consistent with the statements made by Plaintiff’s counsel in the above-referenced letters that Mr. Kramer was barred by the Protective Order from providing the requested documents, Mr. Kramer refused to comply with DCMS Order #1 and proceeded to conduct his business.
On 21 November, Collins sent in a Serjeant-at-Arms who served Kramer with another Order to Produce Documents, which again the CEO declined to comply with. This was followed up by an email from the DCMS Select Committee warning Kramer that his refusal to co-operate had been reported to the House of Commons and action would be taken against him.
The Six4Three version of events states that at this point Kramer decided he needed to deal with “DCMS’ continued pressure and his inability to conduct business peacefully” and engage directly with Collins:
Mr. Kramer did not feel comfortable continuing his scheduled meetings while under an active investigation by Parliament…Mr. Kramer believed it was highly likely that if he continued to ignore DCMS, the Serjeant-at-Arms or other Parliamentary staff may have placed him under contempt or sanction during one of his business meetings, which he believed would have greatly tarnished his reputation, placed him in significant legal jeopardy in the United Kingdom, and made it impossible for him to conduct business in the United Kingdom in the future.
What he chose to do was to take to Google and research his position, coming to the conclusions he did based on search results; what he didn’t chose to do was talk to his lawyers.
His intention was, according to the filing, “to convince Mr. Collins that Mr. Collins could not force him to turn over documents subject to the Protective Order, and further that Mr. Collins could not prevent him from peacefully conducting business in the United Kingdom.”
Kramer alleges that he was kept at Collins office for two hours, where he was told that he was now in contempt of Parliament and faced possible imprisonment - and that seems to have been the tipping point:
At this point, Mr. Kramer panicked…He opened his computer, took out a USB drive, and went onto the local Dropbox folder containing Six4Three’s documents…He searched that folder using keywords and found files whose titles appeared to relate to the antiSLAPP opposition papers that DCMS had ordered him to produce…Mr. Kramer did not expect to find the precise documents Mr. Collins had requested…Mr. Kramer had not previously attempted to open the folder where these documents were located, and did not previously know that he had access to them.
The filing insists that Kramer did not review any of the Facebook documents designated highly confidential. Following the handover of the USB, he was “so shaken by this experience” that he cancelled his remaining meetings and went straight to the airport to fly home to spend Thanksgiving in New York.
Meanwhile back in London, the so-called Grand Committee began to assemble…
It’s one side’s version of events, but the filing makes for interesting reading and provides further evidence of how determined the UK Government is to get some answers out of Facebook. Mark Zuckerberg’s refusal to attend a session to answer questions looks more and more like a major tactical error. Now, onto today’s hearing….