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US judge seizes laptop used to pass Facebook's confidential documents to British MPs

Laurence Dodds
A demonstrator outside Portcullis House on the day of Parliament's fake news hearing last week - AFP

A judge in Silicon Valley has ordered the confiscation of laptops, emails and mobile phones that may have been used to leak secret Facebook documents to British MPs last week.

Judge V. Raymond Swope of the Superior Court of California ordered Ted Kramer, an American app maker who is at the centre of a stand-off between Facebook and Parliament, to hand over his devices to forensic investigators late on Friday night.

His ruling may shed new light on how damaging internal emails between Facebook staff were given to a Parliamentary committee in defiance of a US court order.

It concluded a bruising hearing in which lawyers acting for Facebook "aggressively" sought to control the extent of the leak and seemingly penalise Mr Kramer and his lawyers for their alleged part in it.

"Facebook's highest priority at this point is to determine the extent of the violation of the court's orders and the extent of the dissemination," said Sonal Mehta, counsel for Facebook, adding that the company needed to determine "which confidential information remains at risk of improper disclosure".

The emails have already been used by Damian Collins, head of the House of Common's Digital, Culture, Media and Sport select committee, to grill Facebook about how early it knew about abuses of its system by Russian agents.

Mark Zuckerberg's empty chair at the Parliamentary committee hearing on November 27 Credit: Gabriel Sainhas/House of Commons/AP

Other documents from the same legal case revealed that Facebook briefly considered selling its users' personal data to other companies, something Mark Zuckerberg has promised never to do.

It is unclear what else might be contained among the hundreds of pages of documents created by the lawsuit, most of which remain under a court seal, but they are believed to contain internal discussions between senior Facebook executives, including Mark Zuckerberg, about its business model.

Mr Collins, who has repeatedly attempted to bring Mr Zuckerberg before his committee without success, pledged on Tuesday to publish the documents soon, but said some of them might be redacted.

And on Friday, in a courtroom in Redwood City, California, his use of a rare Parliamentary mechanism to seize the documents sent new ripples through a long-running dispute between Facebook and Six4Three, an app company founded by Mr Kramer. 

Six4Three, the creator of a now-defunct app allowing Facebook users to find pictures of their friends wearing swimsuits, is suing the social network for unfairly "destroying" its business when it cracked down on third-party access to its data in 2015.

Mr Kramer contends that he was dragooned into handing over the documents during a business trip to London, saying that he "panicked" when Mr Collins told him that he was in contempt of Parliament and could face prison.

But Facebook alleges that he deliberately engineered a situation in which he could leak the documents while claiming to be under duress, asking why he took the documents with him to Mr Collins' office on his laptop and why he never consulted a British lawyer.

In Friday's hearing, Facebook's legal team went further, suggesting that their opposing counsel might have requested the disclosure of documents not relevant to their lawsuit with the covert aim of one day making them public in order to make a "tactical gain".

"[They] created a declaration with hundreds of pages of exhibits, many of which... had nothing to do with this case," said Joshua Lerner, counsel for Facebook. "And lo and behold, it all gets disclosed when [Mr Kramer] decides to walk over to Parliament."

Judge Swope did not rule on that claim, but sternly berated Mr Kramer for not bringing the laptop to court, exclaiming: "It was available to the House of Commons DCMS [committee], but not to me. And there's no excuse."

Under intense questioning, Six4Three's lawyers admitted that Mr Kramer should never have had access to the documents, which were stored on a Dropbox account of which he was the administrator.

"What happened is unconscionable," Judge Swope told David Godkin, one of the lawyers. "It shocks the conscience, and your conduct is not taken well by this court... the ends do not justify the means, whatever you're trying to accomplish."

Mr Godkin said that his firm had acted in good faith and had been blindsided by Mr Kramer's actions, also revealing that he was withdrawing his counsel from Mr Kramer, having concluded he could no longer ethically represent him.

But he also protested against Facebook's "aggressive" tactics, which included asking the judge to order that investigators be given access to Mr Godkin's own computer.

Mr Lerner argued that this was necessary to ensure that high-profile corporate clients such as Facebook were not dissuaded from disclosing documents by the fear that "honest discussions among themselves" would be made public.

I have looked long and hard for a case like this and I can't find one," he said. "As a result of what's happened here, lawyers can never say that people don't go out and produce hundreds of documents for foreign governments." 

The court will now attempt to understand how Mr Kramer gained access to the documents whether Six4Three's lawyers played any part in their transmission.

In his ruling, Judge Swope called Facebook's statement of the facts "compelling" but asked it to make the same claims in a sworn affidavit.