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

From a decision in D.C. v. Meta Platforms, Inc. by D.C. Superior Court Judge Anthony Epstein, handed down earlier this month but just posted on 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. ….

Through the Office of the Attorney General ("OAG"), the District has responsibility for enforcing the D.C. Consumer Protection Procedures Act ("CPPA"). OAG is investigating whether Meta made any false or misleading public statements about its efforts to enforce its "content moderation policies" prohibiting misinformation about COVID-19 vaccines in Facebook posts.

OAG issued an investigative subpoena to Meta that seeks, among other things [in Request No. 2], the identities of Facebook users that Meta determined violated its content moderation policies for vaccine misinformation through 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 has refused to disclose this information. The Court concludes that this request for public posts is a reasonable and lawful exercise of the District's subpoena power and that it is consistent with the federal Stored Communications Act ("SCA") [details of this omitted -EV] and with the First Amendment ….

Meta accuses the District of trying "to target and unmask private citizens based on a government regulator's disapproval of the content of their online speech.". However, the target of the District's investigation is not Facebook users but Meta. It is not the District but Meta that identified individual Facebook users as responsible for publicly disseminating misinformation about COVID-19 vaccines.

OAG's investigation focuses on whether Meta's public statements about its enforcement efforts are false or misleading, not on whether Facebook users made any false or misleading statements about vaccines in public posts. Meta does not dispute (at least in this case) that its public statements about its content moderation policies are within the scope of the CPPA, and the District does not dispute that public statements by Facebook users about COVID-19 vaccines are outside the CPPA's scope (unless made by a merchant of COVID-19 vaccines).

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 confidentiality of personal information that it obtains in the course of its investigation.

Meta also accuses the District of engaging in "the regulation of disfavored consumer speech." If either party can be said to be regulating consumer speech, it is Meta through enforcement of its content moderation policies. All that the District is seeking is to determine whether Meta's public statements about its aggressiveness in regulating Facebook posts with negative information about vaccines are false or misleading. OAG expressly represents that it is not seeking to regulate consumer speech, to punish any Facebook user for posting information, or to "moderate content posted on Facebook." …

Meta argues that the Court, should not enforce Request No. 2 because "the First-Amendment protects Meta's right as a private entity to make content moderation decisions about what third-party content to remove (or not) from its platform."' The Court assumes for purposes of this motion that Meta is correct that the First Amendment gives it the right to adopt and modify its content moderation policy as it sees fit. However; enforcement of the District's subpoena would not infringe 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. The District does not claim any right to dictate to Meta what content should remain on, or what content should be removed from, Facebook. The District represents that it is investigating whether Meta's public statements concerning enforcements of its content moderation policies comply with the CPPA, not whether these policies are too weak or too strict, and Meta offers no reason to question this representation. Nor would enforcement of the subpoena require Meta to disseminate the District's preferred message. 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] asserts that compliance with the District's subpoena would unmask users who violated its policies against vaccine misinformation and thereby chill conduct protected by the First Amendment, so the District's attempt to extract this information from Meta is subject to exacting scrutiny. Compelled disclosure to the government of confidential information about activities protected, by the First Amendment may be subject to exacting scrutiny. The Court, questions whether exacting scrutiny is warranted in this case where the only information sought by the District involves speech that Facebook users themselves chose to post publicly, but the Court nevertheless assumes for purposes of this discussion that it should apply exacting scrutiny to Request No. 2. Even under this standard, the District's subpoena to Meta passes constitutional muster….

Request No. 2 is consistent with First Amendment constraints on compelled disclosures for four reasons.

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.

Second, OAG's subpoena is narrowly tailored to its investigative goals. OAG is not seeking information about the identity of all Facebook users who have posted any information about COVID-19 vaccines; OAG is seeking information only about Facebook users who Meta has determined violated its content moderation policies with respect to vaccines (and not its content moderation policies concerning other matters, such as hate speech). This information is relevant to whether Meta's public statements about its enforcement of its content moderation policies concerning vaccine misinformation has a tendency to mislead to Facebook users, as well as other members of the consuming public. The District admits that "with respect to COVID-19 vaccine misinformation in particular, Facebook has not publicly disclosed the total volume of content reviewed, identified as false, demoted, or removed, or the total, number of accounts pages, and groups suspended or banned."

But Meta does not dispute that it has made public statements about its zeal in enforcing its policies and about the amount of content that it has taken down. OAG has a reasonable explanation for seeking the identities of Facebook users who it determined violated its policies: it has information that a small number of users are responsible for a disproportionate share of vaccine misinformation; and it wants to assess whether and how Facebook enforces its policies against repeat violators and people or organizations that have been publicly identified as repeat violators. There does not appear to be any less intrusive means that the District could employ to determine whether and how Meta enforces its content moderation policies against repeat violators or users who have been publicly identified as repeat violators.

Third, and at least equally important, the identities of these Facebook users, like the vaccine-related content they posted, is information that these Facebook users themselves chose to make public. As the Court stated above, the District is not asking Meta to "unmask" users who posted content that violates its content moderation standards for vaccine misinformation. Rather, these users chose to publicly post the content with their identities, and the District is seeking only the identities that these users themselves employed in their public posts. Meta's terms of use require users to identify themselves using the same name that they use in everyday life, but even if users did not comply with this requirement, Meta will provide to the District the information about their identities that the users chose to include in their posts. "[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment," and "[a]nonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering."' But the users who made the posts that Meta determined violated its content moderation policies made public the identifying information that the District, seeks from Meta through its subpoena.

Fourth, nothing in the record suggests that providing this user-specific information to the District will result in any reprisals against Facebook users who violated Meta's vaccine-related content moderation policies when they publicly posted the content along with their identities. First of all, the record does not suggest that the District will publicly disclose information about the identity of any of these individuals.

In any event, if the District does publicly disclose the identities of these Facebook users (for example, in a subsequent enforcement action against Meta) any criticism to which these users may be subjected is part of the price of voluntary and non-anonymous participation in public debates; just as the First Amendment protects the rights of Facebook users to publicly post positive and negative information about COVID-19 vaccines, it protects the rights of others to disagree with those public posts. Meta offers no evidence that any of the people or entities who publicly posted positive or negative content that Meta later determined violated its content moderation policies (a) were in the past subjected to threats or worse or (b) are any more likely in the future to be subjected to any response other 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….