Facebook and Senate Panel Scuffle Over Russia Investigation

Facebook and the Senate Intelligence Committee are butting heads over what information the tech giant must provide about its users during the panel’s probe into Kremlin-directed meddling in the 2016 U.S. presidential elections, igniting a debate between attorneys, advocates, and experts working on privacy law.

The Senate is looking to find any evidence that might suggest Russian activity on Facebook using fake accounts might have swayed voters in key states like Pennsylvania or Michigan toward supporting Donald Trump or his political viewpoints. It’s unclear if Facebook can provide that evidence, or if it even exists. 

But the current point of contention isn’t necessarily about whether foreign influence and “fake news” actively tipped the scales towards one candidate or another — it’s about privacy and how much information Facebook is legally obligated to share with Congress absent a legal order. The Department of Justice has more authority to more quickly get this kind of information.

Much of the debate revolves around whether the Electronic Communications Privacy Act of 1986 protects the stored “contents” of the advertisements and related posts published by the fake Russian accounts.

Facebook would be right to demand a warrant for the content of the ads and posts stored on its servers, even if that content was once public, argues Chris Calabrese, the vice president for policy at the Center for Democracy and Technology. “The fact that these were public is not relevant … they were clearly electronic communications that were public at one point and later stored,” he told Foreign Policy.

Facebook has a legal obligation to protect them and could be sued if it failed to do so, he said. The Electronic Communications Privacy Act “doesn’t care about whether an account is fake or not,” he added.

The act, which many privacy advocates believe is outdated, prescribes what legal authority is required to access certain types of digital information from a company that is storing it on its servers. Typically, account information like the user’s name and address can be provided under a subpoena — a power Congress can exercise on its own — while contents not older than 180 days require a warrant signed by a judge.

“Congress has subpoena power, of course,” says Al Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, who previously represented several big tech companies in national security cases.

But the Electronic Communications Privacy Act, when it applies, limits what a provider can disclose to basic subscriber information; anything more would require a warrant, according to Gidari. “That’s why Congress would get less than Mueller, who could get either an order or a warrant,” he said. (Gidari wasn’t convinced the ads count as protected content.)

It’s unclear if ads that were once public, and other posts published by the Russian accounts, would qualify as “content” under the act, though Facebook’s attorneys appear to think they might.

Getting a subpoena or warrant likely isn’t the only way the Senate can obtain evidence of Russian activity. Laws and authorities, including the Foreign Intelligence Surveillance Act or Executive Order 12333, authorize the National Security Agency to target the digital communications of foreign people of interest located overseas.

However, Facebook appears determined to challenge the Senate’s request for information, using the Electronic Communications Privacy Act as a shield. In the past, companies might have more readily complied with congressional requests for information, but Facebook and others have resisted what they have deemed to be overly broad demands in recent years, especially after former NSA contractor Edward Snowden’s disclosures.

Facebook has already turned over information on the Russian ads and accounts to special counsel Robert Mueller at the Department of Justice for his investigation. Mueller had reportedly obtained a warrant for any content, public or private, posted by the Russian accounts. The Senate is still trying to get its own copies of the ads. Peter Carr, a spokesman for the special counsel’s office, declined to comment on the ongoing investigation when contacted by FP.

Mark Zuckerberg, Facebook’s founder and CEO, initially denied the possibility that Russian activity or fake news on Facebook could have done anything to sway the presidential election in November, though the social media platform has since inched toward confronting the problem. Some lawmakers, including Democratic Sen. Mark Warner, who serves as vice chairman of the Intelligence Committee, have been hounding Facebook to dig deeper into the issue for months.

During the French election, when Facebook was more aware of disinformation campaigns, the company purged tens of thousands of fake accounts. And Facebook updated its ad-targeting policies on Wednesday to prevent targeting using racist or other offensive categories, though it’s not clear those policies would have changed the way the Russian bots connected to voters. 

But actually turning over information on those who bought ads or created fake accounts, even if they were Russians, could potentially violate privacy laws. “What if this argument was turned on its head, and another government was asking for information on U.S. persons who bought ads in another country during the election?” Calabrese, of Center for Democracy and Technology, said.

Ryan Calo, a professor at the University of Washington School of Law, disagreed, suggesting old ads, even if they are no longer public, are not equivalent to stored electronic communications.

Privacy advocates say that whether via a warrant or a subpoena, the government must have a legal route to obtain the information it’s seeking.

“Some legal process is required for FB to turn it over to the govt.,” Jennifer Granick, an attorney for the American Civil Liberties Union, wrote in a tweet.

Facebook could also qualify as a “remote computing service,” as it stores information like ads in case the user wanted to publish them again in the future. In that case, investigators would likely need a warrant to access the information as well.

However, Facebook could also argue that users consented to the information being published at one point in time and therefore they’ve consented in perpetuity for Facebook to “display” the ads. The issue of implied consent for public social media postings has come up in court before, but it hasn’t been resolved.

Facebook did not immediately respond to request for comment on its legal justifications or appearance before the Senate Intelligence Committee.

The company seems undecided on how to proceed. Last week, Facebook allowed the committee to peruse a small sampling, fewer than 10, of the thousands of ads it had uncovered so far. But the company wouldn’t let staff keep the physical copies, changing its explanation about why — first insisting that investigators needed a subpoena, then arguing the ads shouldn’t be public because of Mueller’s ongoing investigation.

The opposing sides are arguing over other issues as well, including how many resources Facebook should devote to curtailing malicious content, “fake news,” or foreign influence (Facebook currently only employs five people to look into these issues broadly, one source says); the number of Kremlin-directed advertisements and posts still out there; and just how many of these accounts are real versus fake.

Senate investigators think Facebook’s probe has only scratched the surface and found the obvious examples, like the ad buyers who paid in Russian rubles or didn’t use any digital cloaking techniques. Facebook is still investigating.

According to the Wall Street Journal, Senate leadership is considering its options to bring Facebook officials, as well as representatives from other social media companies, before the intelligence panel to testify about Russian involvement in the election.

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