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The UK Is Pushing Zuckerberg to Testify With Extremely British, Probably Meaningless Threats

A British think tank posits that in most cases a formal summons 'is sufficient to embarrass a potential witness into appearing.'

by Sophie Kleeman
May 1 2018, 9:56pm

Image: Getty 

Today, a UK parliamentary committee sent yet another sternly worded letter to Facebook, requesting that Mark Zuckerberg appear before its members to answer questions about the Cambridge Analytica scandal, data privacy, and Facebook’s role in democracy, among other things.

The letter was signed by Damian Collins, chair of the Digital, Culture, Media, and Sport select committee. Collins argued that evidence recently presented by Mike Schroepfer, Facebook’s CTO, “lacked many of the important details that we need.” The letter included 39 questions Schroepfer apparently failed to answer—questions which will now fall in Zuckerberg’s lap.

The letter also included an interesting, somewhat veiled, and distinctly British-sounding threat:

We hope that he [Zuckerberg] will respond positively to our request, but if not the Committee will resolve to issue a formal summons for him to appear when he is next in the UK.

While it sounds serious upon first glance—just imagine, for a moment, Mark Zuckerberg getting slapped with an official notice right as he steps off a fancy private plane—the rules surrounding a “formal summons” are somewhat muddy.

According to a briefing paper published in 2016 by the House of Commons library, select committees are able “to send for persons, papers and records.” The paper also cites a passage in Erskine May, the written authority on parliamentary procedure:

“Failure to attend a committee when formally summoned is a contempt and if a witness fails to appear, when summoned in this manner, his conduct is reported to the House… If he still neglects to appear, he will be dealt with as in other cases of disobedience.”

Yet as a government-authored paper published in 2012 notes, the power of either House to punish someone for contempt “is untested in recent times.”

It goes on:

In theory, both Houses can summon a person to the bar of the House to reprimand them or order a person’s imprisonment. In addition, the House of Lords is regarded as possessing the power to fine non-members. The House of Commons last used its power to fine in 1666 and this power may since have lapsed … The Government is not aware of any case where an individual has failed to comply with a formal summons from a select committee or with an order to produce a document or record. Therefore, the evidence suggests that in practice there may not be an issue to address.

Or, as a blog post from the think-tank Institute for Government puts it, “in most cases such a summons will be sufficient to embarrass a potential witness into appearing.”

There is some precedent here. James and Rupert Murdoch, the News Corp executives who became embroiled in an infamous phone hacking scandal, initially declined to appear before the same committee in 2011, though James offered to attend a hearing at a later date. In response, the committee issued the men with a summons, to which they ultimately acquiesced. (Another executive, Rebekah Brooks, voluntarily agreed to attend.)

Of course, all of this is hypothetical. The committee hasn’t actually issued a formal summons to Zuckerberg, because it’s still counting on him to voluntarily show up.

As for what might happen if Zuckerberg were to defy a formal summons, Lucy Dargahi, the committee’s press officer, told Motherboard that we’re still not there yet. “The committee would have to make a decision at the time, but we’re not quite at [that] point,” she told Motherboard. “If he still refuses to come, then that’s something the committee will have to consider what’s within their powers to do after that.”

Even if he refuses, however, it’s unclear what punishment might actually be doled out to Mark.

“I’m skeptical that a ‘formal summons’ has much legal bite—or, at best, untested legal bite and, let’s face it, Facebook can afford lawyers,” Neil Brown, a technology-focused lawyer based in the UK, told Motherboard.

Facebook declined to comment on the letter, but it’s worth noting just how reticent Zuckerberg has been to appear before the committee. He’s already declined its invitation three times, sending lower-level executives in his place. The company has indicated that it’s willing to answer the committee’s questions, but there’s little evidence thus far that Zuckerberg himself will get involved.

It’s in contrast to his recent congressional testimony, which went on for two days. Then again, if Mike Schroepfer’s appearance is any indication, it’s no wonder Mark doesn’t want to show up. By some accounts, the European lawmakers were far more scrupulous in their questioning than their American counterparts.