Zuckerberg vs the Serjeant-at-Arms - no contest as Facebook documents are seized by UK Government

Profile picture for user slauchlan By Stuart Lauchlan November 25, 2018
Obscure Parliamentary procedure was used to get hold of Facebook documents. Now the fun begins...

Don't mess with the mace!

Several months ago, legislators in the UK Government warned Facebook CEO Mark Zuckerberg that theyd drag him before Parliament next time he sets foot in the country if he didn’t agree to be more co-operative.

It might have been dismissed as an empty threat at the time back at Facebook HQ - it certainly didnt get the Facebook founder to deign to put in an appearance - but Zuck and Co just had an unpleasant wake-up call that the British weren’t bluffing.

Days before a so-called Grand Committee supported by governments from Australia and Argentina through Brazil and Canada to Ireland and Singapore is due to convene in London on Tuesday, the UK authorities entered “unchartered territory” to seize internal Facebook documents that they believe hold crucial information about decisions related to the Cambridge Analytica data sharing scandal.

The documents in question were in the possession of Ted Kramer, the founder of US software provider Six4Three, who was in London. He was asked by a Parliamentary official to hand over the documents, but declined to do so, at which point he is reported to have found himself marched to Parliament by the Serjeant-at-Arms and warned that he faced prison if he refused the order.

This turn of events was made possible by exploiting an obscure Parliamentary mechanism, which Damian Collins, Chair of the UK’s Select Committee on Digital, Culture, Media and Sport (DCMS) admitted was “unchartered territory” but insisted:

This is an unprecedented move, but it’s an unprecedented situation. We’ve failed to get answers from Facebook and we believe the documents contain information of very high public interest.

What's inside?

So what’s in the documents that makes all this worth the fuss? Well at present there’s no confirmation of the exact nature of the contents, but the speculation is that they include confidential emails between senior Facebook execs and Zuckerberg himself and relate to discussion of data and privacy controls in the years prior to the Cambridge Analytica revelations. If so, they could provide valuable insight into what Facebook management knew or did not know.

Six4Three obtained the documents in the first place during a legal discovery process after taking legal action against Facebook. It alleges that Facebook was aware of the loophole in its privacy policy that Cambridge Analytica was able to exploit to collect data from users. Facebook says such claims have no merit and that it will defend itself.

And that’s where this could get even more interesting. As part of ongoing legal action in the US, the document are subject to court order. A Facebook spokesperson stated:

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.

But there’s such a thing as Parliamentary privilege which gives UK legislators the power to make statements and disclosures within Parliament itself that would otherwise expose them to contempt of court charges. Most recently this practice was used to name businessman Philip Green as the subject of sexual harassment charges despite his being granted an injunction to protect his identity.

So when the DCMS-led Grand Committee meets tomorrow, will Parliamentary privilege be used to reveal what’s said in the seized documents? The Court in San Mateo has said that it will regard failure to comply with its order not to disclose unredacted copies of the documentation as contempt of court. But quite how a California court thinks it can exercise such control over the Palace of Westminster is unclear.

For his part, Collins clearly thinks he’s on safe ground. In an email to Richard Allan, Facebook’s EMEA Vice President of Policy Solutions - who will stand in at the Grand Committee as the latest Zuck-a-like to take the fire for the absent CEO - Collins stated:

My understanding is that an order by the court to seal documents in a case like this is not common practice in the USA. However, that is a matter for the court in California, and not my committee. As you know, as a member of parliament yourself, 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, where the First Amendment rights of free speech allow much more open discussion of cases.

And he put the blame firmly on Facebook for the state of affairs:

As you know, we have asked many questions of Facebook about its policies on sharing user data with developers, how these have been enforced, and how the company identifies activity by bad actors. We believe that the documents we have ordered from Six4Three could contain important information about this which is of a high level of public interest. We are also interested to know whether the policies of Facebook, as expressed within these documents, are consistent with the public statements the company has made on the same issues.

My take

Memo to Zuckerberg - The US Congress let you off easily through pompous grandstanding and the European Commission did the same thanks to cumbersome bureaucracy, but you don’t mess with the Serjeant-at-Arms and his mace!

Tomorrow’s Grand Committee was always going to be interesting, but now it's compulsory viewing. It’s still not too late for Zuckerberg to take up the offer of a video link to give testimony - thus avoiding any close encounters with the the good Serjeant! - but he won’t. Facebook has dug its corporate heels in. What happens next is in large part down to that, but Zuckerberg has been given more than enough chances by the DCMS Committee. Time to take what’s coming.