- By Colum Lynch
Facebook, Google and other social media giants have been all-too-willing to hand over information about their users when American intelligence and law enforcement agencies come calling.
But what can a team of international investigators expect to hear when they ask for a peek into their trove of data for clues about the activities of terrorist, pirates and narco-traffickers?
That’s essentially what happened when a panel of U.N. investigators recently approached Facebook to request information on six users linked to Somalia’s piracy and organized crime networks.
"Despite repeated official correspondence addressed to Facebook, Inc." representatives of the U.N. Security Council’s Monitoring Group on Somalia and Eritrea wrote in a report released last week, "It has never responded to the Monitoring Group requests to discuss information on Facebook accounts belonging to individuals involved in hijackings and hostage taking."
For years, U.N. investigators working from the Democratic Republic of the Congo to Somalia and Sudan have quietly sought email, telephone intercepts and social media exchanges and metadata from foreign intelligence agencies, local telecommunications firms, and major social media companies, including Google, Yahoo and Microsoft. But they have been routinely refused by the big American tech companies, who have cited the lack of a subpoena or court order in denying the request, according to former panel members.
Facebook declined a request by Foreign Policy to explain why they refused to cooperate with the U.N. group, which was established by the U.N. Security Council to monitor compliance with an international arms embargo and to expose forces seeking to undermine the peace process in one of the world’s most dysfunctional countries.
But Facebook’s legal guidelines offer some insights into how the company handles such requests from criminal investigators.
According to those guidelines, Facebook requires "a valid subpoena" for the "disclosure of basic subscriber records," including a "name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available." A court order is needed for access to "message headers and IP addresses."
In order to gain access to the most sensitive personal information, including "messages, photos, videos, and posts and location information," law enforcement authorities must establish "probable cause" that a crime has been committed and obtain a search warrant." (The rules for complying with an intelligence agency are different, of course.) Facebook will also respond to legal requests for user account information from foreign law enforcement agencies through a Mutual Legal Assistance Treaty. But such requests would typically be channeled through the U.S. Justice Department.
So why won’t Facebook cooperate with agents of the U.N. Security Council, an international recognized body whose decisions carry the force of international law? For one, it has not received a court order to do so, so why bother.
The U.N. monitoring group on Somalia and Eritrea — like all U.N. Security Council sanctions investigators — doesn’t have subpoena power, and it cannot invoke the authority of any court’s to compel Facebook or any other individual to comply with its requests.
"I certainly understand the reticence to start handing over information," said Kal Raustiala, a professor of international law at the University of California, Los Angeles, citing the sensitivity of having an American company provide intelligence for a criminal investigation in a foreign land. But he said that social media companies like Facebook do not have "an iron clad principle" about not sharing information, citing recent revelations by former NSA contractor Edward Snowden that social media companies have allowed the National Security Agency to scoop up metadata on a massive number of individuals accounts.
The U.N. panel said that their investigation into Somali piracy revealed that organized crime figures that dominate the illicit industry have developed a fairly sophisticated business model that relies heavily on social media.
"Somali piracy entails more than armed youngsters at sea in small boats attacking hijacked vessels," the report stated. "The piracy business draws on a widespread network of facilitators internationally and inside Somalia from multiple layers of society. In fact, pirates and their accomplices may be bankers, telecommunications agents, businessmen of various kinds, politicians, clan elders, translators and aid workers, all using their regular occupations or positions to facilitate one or another network."
The U.N. investigators have honed in on six major organized crime figures that "are interlinked through various communication channels and employ social network services, such as Facebook." They have compiled a "strictly confidential" dossier on their alleged crimes in the hopes that, one day, a local or international court decides to prosecute them.
To help investigators like these, the Security Council’s 15 ambassadors could adopt a binding resolution, under Chapter Seven of the U.N. Charter, demanding that Facebook turn over its records. But I suspect there would little appetite in the United States or any other major world capital for threatening Facebook with a measure that is traditionally used to compel the world’s lawless despots to improve their behavior. The cooperation between the tech giants and the United States’ government has already stirred protests around the globe. Further cooperation with international investigators might not exactly come as welcome news.
Still, the refusal of Facebook to help the U.N. Security Council puts the firm in the company of a lot of shady companies and undemocratic countries who routinely refuse to cooperate with U.N. inspectors requests for basic information.
"It’s a longstanding problem that has never been resolved," said Rico Carisch, a former investigator who served on U.N. Security Council panels for the Democratic Republic of Congo, Somalia, Liberia. He’s also a co- founder of a consultancy that helps companies and nations comply with U.N. sanctions and arms embargos.
Carish said that several years ago he had sought to obtain information confidential from Google, Yahoo, and Microsoft in the course of an investigation into the activities of arms smuggles and armed in Darfur. The answer, he recalled, was essentially "not without a court order." The inability to obtain such information has hamstrung investigations.
"Communication no longer takes place just on the telephone; it takes all kinds of other forms," he explained. "One cannot conduct militia warfare without emails, chat-lines and satellite phones. If we do not get the voluntary cooperation of these communications facilitators and companies we cannot effectively monitor abuses and help prevent atrocities."
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