Facebook’s Encounter with Parliament’s Inherent Powers

A parliamentary committee has seized a trove of internal Facebook documents relating to the company’s data and privacy policies and practices. The documents were obtained via a U.S. businessman, Ted Kramer, who had sued Facebook in state court in California. Kramer had access to the documents because his company had obtained them through discovery in the litigation, but a protective order prohibited the parties from sharing them with the outside world.

So how did the documents end up with a House of Commons committee investigating Facebook in the U.K.? Somehow the chair of the committee learned Kramer was in London on business, and he thereupon dispatched the Commons Serjeant at Arms to Kramer’s hotel. The Serjeant at Arms (no word on whether he was carrying his sword) served Kramer with an order demanding the documents, and the committee followed up with an email threatening the businessman with contempt of Parliament if he did not comply. After a meeting with the committee chair in which he was allegedly told he could be subject to fines and imprisonment for contempt, Kramer (who unwisely attended this meeting without his lawyers) used his laptop to access and download the documents to a USB drive and then handed it to the committee.

Facebook argues that the document disclosure violated the California court’s protective order, and it is seeking discovery regarding this disclosure (presumably hoping to establish collusion between Kramer and the committee). It has also demanded that the committee return its documents. The committee, however, notes that it is not subject to the court’s jurisdiction and is in any event protected by parliamentary privilege. The committee has already used the documents in the course of an extraordinary hearing held in London on November 27, 2018 in which lawmakers from nine different countries, calling themselves the “International Grand Committee on Disinformation,” interrogated a Facebook representative about the company’s policies and practices.

This series of events raises some interesting questions, which we will briefly consider below.

Did the committee have the legal authority to compel the release of the documents? In theory, yes, in practice not so much. One of the interesting takeaways is how little the British Parliament actually relies on legal compulsion to obtain information. Unlike in the United States, where it is a federal criminal offense to defy congressional subpoenas or refuse to answer questions before a committee, there is no analogous statute in the U.K. Thus, the Parliament’s only power to compel production of information is what we refer to in the U.S. as “inherent contempt”, i.e., the process by which a legislative chamber can itself try and punish individuals with fines or imprisonment for contumacious conduct, including the refusal to provide evidence demanded by a committee.

As the U.K. Supreme Court noted in R v. Chaytor, 1 AC 684 (2011), “[i]mprisonment has not been imposed in recent times and the same is true of the theoretical power to fine.” Indeed, as the Clerk of the House of Commons noted in 2012, the House of Commons has not imprisoned anyone since the late 19thcentury and the “theoretical” power to fine was last exercised in 1666 (not, strangely enough, in connection with fire code violations). There is a concern that if Parliament were to attempt to impose punishment in the modern era, its action would be challenged in the European Court of Human Rights as a violation of the due process requirements of the European Convention on Human Rights. The Clerk observed that such an action would create at least “a substantial reputational risk, most of all for a Parliamentary institution all of whose Members would support the fair and equal treatment of citizens as a fundamental requirement of modern society.”

In short, it appears that Parliament is no more prepared to test the validity of its inherent contempt powers than is Congress. Mr. Kramer was therefore likely in no serious jeopardy of facing any penalty for contempt, something he would have known if he had consulted his lawyers.

Did the committee act properly in demanding Kramer produce the documents? As explained by the Clerk in 2012: “If a Select Committee wishes to require the attendance of a witness, an informal request is issued. If the witness is unwilling, a period of negotiation usually follows. If it is clear that the witness is not willing to attend, and the Committee wishes to insist, an order for attendance is made by the Committee, signed by the Chair, and then served upon the witness by the Serjeant at Arms or the Serjeant’s representative.”

It appears that the parliamentary committee more or less followed this standard procedure in its dealings with Kramer. However, to the extent the committee represented to Kramer that he was already in contempt of Parliament or that he would be subject to fines or imprisonment, its actions were at least questionable. As a former official of the House of Commons observed last week, it is “inconceivable that any parliamentary official would have been authorized to threaten Mr. Kramer with a fine or imprisonment.”

Furthermore, the committee’s action arguably convened the spirit of the sub judice rule, which prohibits Parliament from interfering with matters currently pending in U.K. courts. (This rule has also been raised in connection with the disclosures by Lord Hain discussed in my last blog post). Although the rule is not directly applicable to a court case pending in another country, the committee may still suffer reputational damage from its disregard of the protective order entered in the California court.

It may be instructive to compare how a congressional committee might have gone about obtaining the same documents. Most likely, it would have subpoenaed the documents directly from Facebook, an option that was perhaps unavailable to the British committee both because of jurisdictional questions (the documents were not present in the U.K.) and the lack of effective compulsory process. A congressional committee might also have sought to obtain the documents directly from Kramer, but it probably would not have insisted that he violate the California protective order. Instead, it might have sought to intervene in the California case in order to secure a modification of the protective order. Finally, a congressional committee would have been reluctant to communicate with Kramer directly once it knew he was represented by counsel due to legal ethics rules prohibiting the committee’s lawyers from engaging in ex parte contacts.

Does Facebook have any recourse with respect to the seizure of its documents? Facebook may or may not be able to get relief against Kramer for violating the California protective order, but it has no effective remedy to retrieve its documents or prevent the parliamentary committee from publishing them. The committee is not a party to the protective order nor within the jurisdiction of the California court. Even if Facebook had a basis for a claim against the committee, parliamentary privilege would protect the committee from any legal consequences.

A small caveat might be in order. It is conceivable that the committee’s actions in pressuring Kramer to disclose the Facebook documents went beyond the protections of parliamentary privilege. If, for example, the Serjeant at Arms had physically restrained Kramer and brought him to the committee, parliamentary privilege might very well not apply. It is difficult to see, however, how this possibility would help Facebook under the circumstances presented.

No doubt Facebook will continue to argue that the committee’s actions were fundamentally unfair and violated its right to due process. Whether this argument will be effective in the court of public opinion remains to be seen.

What are the broader implications of these events? It is hard to look at this episode without thinking it contains hints of things to come. Social media giants like Facebook operate globally and, it is now clear, affect the politics and culture of many nations in ways that their governments find deeply unsettling. As the “International Grand Committee on Disinformation” shows, legislatures are prepared to push back.

Legislatures limited by existing processes to compel the production of information may turn to ancient prerogatives that have fallen into disuse (as occurred here) or they may look to more novel techniques. Cooperation or information-sharing among legislature is a resource that has barely begun to be tapped. I imagine that the incoming U.S. House of Representatives, for example, may be interested in obtaining the assistance of Parliament to gain access to one particular witness in its investigation of “disinformation” in the 2016 election. For a discussion of Congress’s power to conduct extraterritorial oversight, and related issues of comity that may arise, see Professor Andy Wright’s recent article in the Wayne Law Review.

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