FILED UNDER SEAL May 31, 2023 Via CM/ECF Re: Klein v. Meta Platforms, Inc., No. 3:20-cv-08570-JD (N.D. Cal.) Dear Judge Donato: Advertiser Plaintiffs (“Advertisers”) respectfully request that the Court find that a prima facie case exists under the crime-fraud exception with respect to certain communications currently being withheld by Defendant Meta Platforms, Inc. (“Facebook”) as attorney-client privileged. The communications at issue relate to Facebook’s so-called In-App Action Panel (“IAAP”) program, which existed between June 2016 and approximately May 2019. The IAAP program, launched at the request of Mark Zuckerberg, used a cyberattack method called “SSL man-in-the-middle” to intercept and decrypt Snapchat’s—and later YouTube’s and Amazon’s—SSL-protected analytics traffic to inform Facebook’s competitive decisionmaking. As described below, Facebook’s IAAP program conduct was not merely anticompetitive, but criminal—the program violated 18 U.S.C. § 2511(a) and (d), the so-called “Wiretap Act,” with no applicable exception. Facebook’s attorneys were pervasively involved in the design, execution, and expansion of this program. On May 15, 2023, Advertisers sent Facebook a nineteen-page single-spaced letter providing screenshots, quotations from documents, and evidentiary citations setting forth the company’s applicable conduct; analyzing that conduct under 18 U.S.C. § 2511, et seq. and under the Ninth Circuit’s crime-fraud test, see In re Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016); and seeking a prompt meet-and-confer.1 Over the next two weeks, Advertisers sent additional letters and emails. On May 31, the parties met and conferred and reached impasse. I. Facebook’s IAAP Program Targets Competition By Wiretapping Competitors On June 9, 2016, Mark Zuckerberg emailed three of the company’s top executives a message titled “Snapchat analytics.” PX 2255 (PALM-016564834) at 3. According to Zuckerberg: Whenever someone asks a question about Snapchat, the answer is usually that because their traffic is encrypted we have no analytics about them. . . . Given how quickly they’re growing, it seems important to figure out a new way to get reliable analytics about them. Perhaps we need to do panels or write custom software. You should figure out how to do this. Id. Javier Olivan, now Facebook’s COO, promptly replied, “fully agree[ing] that this was one of the most important market analysis questions we need to answer.” Id. However, Olivan “ha[d] been looking into this with the onavo team” and the technology to look inside Snapchat’s SSL- protected analytics traffic “[wa]s really complicated,” likely “requir[ing] legal approval.” Id. Five minutes later, Olivan forwarded Zuckerberg’s email to Facebook’s Onavo team, asking for “out of the box thinking” on a task that “is really important.” Id. at 2. Olivan suggested potentially paying users to “let us install a really heavy piece of software (that could even do man in the middle, etc.).” Id. Later that morning, Onavo founder Guy Rosen replied: “we are going to figure out a plan for a lockdown effort during June to bring a step change to our Snapchat visibility. This is an opportunity for our team to shine.” Id. at 1. Two days later, Olivan forwarded the whole email thread to then-General Counsel Colin Stretch, saying “[w]e should move as fast as possible on this (budget will not be an issue assuming Colin greenlights this type of research on the thread @ Colin 1 Advertisers stand ready to provide full briefing, exhibits, and/or Advertisers’ letters to Facebook at the Court’s request. Case 3:20-cv-08570-JD