SJC: Healey can continue pursuing Facebook documents

AG is investigating potential misuse of user data

MASSACHUSETTS’ HIGHEST COURT gave Attorney General Maura Healey a green light to continue pursuing internal documents from Facebook, as she investigates whether the company misused the personal data of users.

The Supreme Judicial Court on Wednesday ruled that Healey may be entitled to subpoena information obtained by Facebook’s own internal investigation and sent the case back to a lower court judge to parse exactly which documents Healey can get.

“The Attorney General has a mandate to investigate such potential misuse of Massachusetts users’ data as well as potential misrepresentations by Facebook, and considerable authority with which to do so,” wrote Justice Scott Kafker in the unanimous, 52-page decision.

Healey said in a statement that the SJC decision “is yet another court ruling against Facebook’s attempt to hide information from the public about other app developers that may have engaged in misconduct like Cambridge Analytica.”

In May 2018, Cambridge Analytica, a data analytics firm that worked with former president Donald Trump’s campaign, improperly harvested the personal data of 87 million Facebook users through an external app, then used the data for political purposes. Healey launched her own investigation into whether other organizations also created apps using Facebook’s platform, then misused Facebook users’ personal data, violating the state’s consumer protection law.

In anticipation of a slew of litigation, Facebook hired its own internal investigators to determine the extent to which apps had misused user data. Healey wanted to get some of that information. In particular, she asked for lists of specific apps and developers that Facebook had flagged as potentially problematic. She also asked for internal communications about these apps.

Facebook has been cooperating with Healey’s investigation and provided large troves of documents, but it challenged this request on the grounds that information uncovered by the internal investigation could not be subpoenaed because it was protected by attorney-client privilege and was also considered “work product” prepared in anticipation of litigation, which legally is not subject to discovery.

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Shira Schoenberg

Reporter, CommonWealth

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

The SJC ruled that Healey’s request was structured in a way that does not implicate attorney-client privilege. It ruled that the documents are considered “work product,” but certain factual information uncovered in preparing for litigation can be requested if the attorney general demonstrates a “substantial need” for the information and cannot get it otherwise without undue hardship. In this case, Kafker wrote, Healey met that burden.

The ruling sends the case back to Suffolk Superior Court, where a judge will have to determine exactly which factual information and other communications Facebook will be required to produce.