App developer suing Facebook ordered to hand over laptop after giving sealed documents to UK Parliament

3 December 2018 8:37pm

1 December 2018. By Amy Miller.

An app developer suing Facebook who gave confidential court documents to the UK Parliament was ordered by a California state judge Friday to turn over his laptop computer for a forensic analysis.  

California Judge Raymond Swope in San Mateo said he wanted to find out exactly how the app developer was able to access court documents that had been sealed, and exactly what information had been provided.

“I must say what has happened is unconscionable,” Swope said. “It shocks the conscience.”

The court documents are related to a lawsuit filed against Facebook in 2015 by Six4Three, which ran a now-defunct app called Pikinis that trolled the social network for photos of bikini-clad women. Six4Three claimed that Facebook rendered its app “worthless” when it tightened its privacy policies that year.

But the lawsuit is now getting global attention because sealed documents in the litigation that could provide insights about Facebook’s approach to user privacy could become public. It’s unclear how damaging the information would be to Facebook, which is struggling to convince users that it values privacy after the Cambridge Analytica scandal.  

The UK’s Digital, Culture, Media and Sport Committee, which is investigating Facebook for allegedly spreading disinformation, obtained the documents last week from Six4Three founder Ted Kramer, who was ordered to hand them over while visiting the UK. Damian Collins, the committee’s chair, has since threatened to publish the documents.

On November 20, Swope asked for briefs explaining what happened, and ordered all the parties in the lawsuit to appear before him on November 30 to discuss the redacted documents at issue.

In an odd twist, Six4Three’s attorneys suggested in their filing to Swope that a reporter involved in breaking news about Facebook’s Cambridge Analytica scandal may have told British officials where Kramer was staying.

According to the filing, Collins told Kramer that he was in contempt of Parliament, and Kramer "panicked." He began searching his Dropbox account for relevant files and eventually copied some of them to a USB stick, which he gave to Collins.

Facebook’s lawyers, however, told a much different story. Kramer and his lawyers intentionally invited a foreign committee to issue a non-voluntary order in conflict with the court’s protective orders in the case, without notifying the court or Facebook, Facebook argued.  

“We don’t know the full extent of what was breached, who breached it, or how involved any other individuals were in the decision to violate this court's order,” Facebook attorney Sonal Mehta said.  

Kramer had “compelling” reasons not to comply with the DCMS Committee’s order, given the protective orders, and Kramer’s attorneys should have known that he was not in imminent danger of being fined or imprisoned if he didn’t comply, Facebook said. The House of Commons hasn’t fined anyone for contempt since 1666, Facebook said.

In addition to Kramer’s laptop, Facebook has asked to see all documents and communications related to Kramer’s actions, and to question Kramer’s attorneys under oath and examine their computers as well. Facebook is also seeking sanctions against Six4Three.

Kramer could not have violated the protective order if his lawyers hadn’t given him access to the documents, Facebook attorney Joshua Lerner said.

Swope found most of Facebook's requests are premature. But, at Facebok's suggestion, the cybersecurity firm Stroz Friedberg will conduct the forensic analysis of Kramer's computer, Swope decided. Swope also ordered Kramer to hand over his mobile devices for examination, and forbade him from accessing any Six4Three court documents stored in the cloud and to turn over any passwords that allowed him to access the documents.

Six4Three attorney David Godkin agreed the matter is serious and that a forensic analysis should be conducted on Kramer’s laptop to find out exactly what happened.

But Godkin pushed back against being deposed by Facebook’s lawyers, as well as the scope of the documents Facebook is seeking, arguing that Facebook is trying to “bury us here.” There are could also be problems related to attorney-client privilege in unrelated cases if defense attorneys are ordred to turn over their computers, he said.

“Isn’t this problem of the plaintiffs’ own making?” Swope said.

“It probably is,” Godkin said.

“Probably?” Swope said. “You equivocate?”

Godkin and fellow defense attorney Stuart Gross said they had done all they could to mitigate any problems after learning what Kramer had done. But they couldn't explain how Kramer was able to access the documents. They also said they were withdrawing as Six4Three's defense counsel as a result of Kramer’s action.

Swope, however, ordered all the defense attorneys to remain in the case until the matter is resolved.

“You’re not going anywhere,” Swope said.

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