Facebook, For The Prosecution

Omar Ameen is awaiting decision on whether he lives or dies. Iraq claims he’s a killer and wants him returned. The United States seems all too happy to comply, even though the Iraqi claim is almost certainly false and, should Ameen be sent back to Iraq, he will almost certainly be executed.

His contention is that he was living in Turkey at the time the killing was supposed to have happened, so he couldn’t be the killer.

The key point in the story is that committing the crime would have been physically impossible for Mr. Ameen, who was residing in Turkey and in the middle of his refugee application process at the time. The victims’ parents have also stated that Ameen is innocent of the crime. Ameen is the victim of a false accusation that seems to have been spread by someone with a vendetta against his family, and that false accusation was then accepted at face value and reproduced by American and Iraqi officials. By all other accounts, Ameen has been a law-abiding refugee who fled Iraq because he was in fear for his life, and now he is about to be sent back because of outrageous lies.

But what about proof? Of course there’s proof. It’s right there, on Facebook and Twitter.

But new evidence has been unearthed that his attorneys say will show he was 600 miles away from Rawah at the time of the killing. Additionally, an Islamic State Twitter account that the company suspended, as well as a suspended Facebook account, could be instrumental in proving Ameen’s innocence.

Yay? Not so fast.

But the social media giants are refusing to cooperate.

There is a love/hate relationship between social media platforms and the government, where they sometimes fall all over themselves trying to appease law enforcement or quietly mutter “no, no, I shan’t,” before handing over everything in sight. They are not so cooperative with the defense.

Interviews with privacy experts and public defenders, as well as a review of court records and email communications, reveal the extent to which social media companies deny defense attorneys access to evidence. The Chronicle’s findings show the social networks routinely use their vast legal resources to fight defense subpoenas, and they have even defied court orders that could assist people facing wrongful convictions.

To be clear, the defense can request, demand, subpoena and even obtain a court order directing them to provide critical information. They refuse, deny, ignore and fight. Neither Facebook nor twitter lack for lawyers with plenty of time on their hands to write lengthy memoranda about why they shouldn’t have to comply, all while the defense is busy using its limited time and resources to deal with other things, like defending.

And even after you get an order, they claim they can’t possibly figure out what information is being sought. It’s almost as if they’ve never actually seen their own platform. A name? A date? Pictures, content, and the dreaded IP address of their user? Nope, never heard of such a thing judge. What is this “IP” thingie of which you speak? After that, the 37-page memo filled with every technical jargon word arrives to explain why it’s just not technically possible to do what they sold to Cambridge Analytica.

A San Francisco Superior Court judge last year issued a scathing critique of the companies’ policies, finding Twitter and Facebook in “inexcusable” contempt for refusing his order to release evidence in a murder case.

“Facebook and Twitter appear to be misusing their immense resources to manipulate the judicial system in a manner that deprives two indigent young men facing life sentences of their constitutional right to defend themselves at trial,” Judge Charles Crompton wrote. “But Facebook and Twitter have made it clear that they are unwilling to alter their behavior, regardless of the harm to others — or the rulings of this court.”

While we applaud their defense of privacy, largely because the stories of their acquiescence to law enforcement happen in darkness, the fact remains that they are subject to the orders of a court like anyone else. As the Supreme Court held in Branzburg v. Hayes, “the law is entitled to every man’s evidence.” But you still have to pry it out of them.

Why won’t Facebook and Twitter comply? Why do they cooperate so readily with law enforcement and fight so vehemently with the defense?

Numerous court filings by Facebook, Twitter and other social media companies repeat the same central argument: The Stored Communications Act, or SCA, forbids them from divulging the content of communications unless a specific exemption applies. None of the exemptions apply to criminal defendants.

And if this wasn’t bad enough, there are peculiar “real world” demands they make, notwithstanding the rules for the rest of society.

In addition to the legal firewalls, Facebook also requires defense counsels to deliver subpoenas in person to their Menlo Park headquarters or to an authorized agent.

Facebook has lovely offices in Manhattan. They have executives there. They have people there of proper age and responsibility. But don’t try to serve a subpoena there, or they’ll throw it back at you. That’s not how Facebook wants it done. Even if a court orders Facebook to accept the subpoena, because a witness doesn’t get to dictate to the court how an otherwise properly served paper magically becomes ineffective because that’s not how they like it, Facebook doesn’t care.

Their answer isn’t to be rude or dismissal, but to paper the defense to death, fighting a war of attrition, knowing that the lawyers for the defense can’t spend years fighting with Facebook and Twitter. They wear out the defense and the court until it no longer matters.

For Omar Ameen, that time will come should he lose the extradition hearing and be sent to his death in Iraq. Isn’t social media great?

11 thoughts on “Facebook, For The Prosecution

  1. B. McLeod

    Both of these entities have demonstrated practices of acting summarily based on poorly founded accusations. They probably feel like governments ought to get to do the same. They don’t like to cooperate with the “defense” because that concept doesn’t exist in their world.

  2. LocoYokel

    I know, dumb not a lawyer, reddit answer but what’s the possibility of this?

    Finding CEO and CLO in contempt, bench warrant for said contempt, getting to sit in county lockup with daily fine to cover room and board until said information is provided?

    No need to post if it’s just to dumb.

  3. Jake

    Breaking: Powerful, expensive lawyers don’t like it when social media companies use powerful , expensive lawyers to achieve objectives inimical to their clients’ interests.

  4. Scott Putnam

    I have a theory why Social Media supports prosecution supenoas but stonewalls on defense. It is not peculiar trait to Facebook and Twitter. Rather it is human nature (and not the good part…)

    Friends and family treat a conflict the same way. When someone claims be to be harmed (plantiff) the friends and family comfort you and make an effort to alleviate your pain. However when you alleged to do something wrong, your friends and family disappear and think well you are probably not guilty, but I don’t want to get involved. They are rarely outraged at false allegations or spend the time to investigate allegations, they simply don’t see the upside to supporting you in your defense. But give your friends and famil an ambulance chasing grievance, racism charge or date rape, and the friends and family will come like the calvalry. Social Media is just a hyper-charged dysfunctional family. Same human nature. Cowards.

  5. Jardinero1

    I understand that the post is about defense’s inability, under the law, to obtain the data, compared to the relatively free ride Law Enforcement gets. Assuming, for the sake of argument, that defense could obtain the data, I am not sure how exculpatory an IP address would be. VPN use is widespread in Turkey, Iraq, Iran, Saudi Arabia and other repressive nation states. A twitter or facebook post from any one of those locales would likely show an IP address originating just about anywhere but from where the post originated.

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