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Notes -
Twitter Files 7
Another Twitter Files post: Link
Michael Shellenberger writes this one, arguing that the FBI worked hard to prime social media platforms into thinking a hacked release would come out prior to the 2020 election. He writes the following.
The FBI's regular meetings with people like Yoel Roth were characterized by the latter as telling him that state actors might try a "hack and leak" operation prior to the election.
The FBI was aware that there wasn't anything to go by on this claim, as Special Agent Elvis Chan testified.
Twitter found no evidence of significant Russian/foreign interference on the platform, and Roth repeatedly informed Chan/the FBI on multiple occasions about this.
Twitter repeatedly resisted efforts by the FBI to get data outside the normal search warrant process and was aware that the FBI was trying to probe a lot.
The FBI eventually got temporary clearances to share top-secret info with Twitter executives regarding APT28, a Russian hacking organization. Roth described himself as being "primed primed to think about the Russian hacking group APT28 before news of the Hunter Biden laptop came out."
Former FBI employees were so numerous at Twitter that they had their own internal slack channels.
In September 2020, Roth and others partook of a tabletop exercise to simulate a "hack and dump" operation regarding the Biden campaign. The goal was apparently to "shape" how the media would respond.
When the Hunter Biden leak finally happened, Roth would argue that it appeared more like a subtle leak, since nothing appeared in clear violation of the rules. Jim Baker would respond that it seemed hacked, so Twitter was reasonable in suppressing it until more information came out. But this is nearly impossible, since the FBI's subpoena for the laptop was attached to the NYPost article.
Roth appeared to buy this story now, and in an email said that it was likely that hacked materials were uploaded to the laptop and given to the shop.
There is a pattern of the FBI trying to warn elected officials with a goal of leaking to the news. They did this with Senators Grassley and Johnson, who were investigating and believed that it compromised their credibility. Jim Baker was apparently investigated twice for leaking information (in 2017 and 2019).
As a reminder, the above is what he's arguing, not what I think is necessarily true.
From what I can see, it appears the FBI was very insistent upon the possibility of a 2016 DNC-style hack. I don't think this is necessarily unreasonable until the election is settled - that the hack didn't happen doesn't mean you could conclude it wouldn't were you in the months leading up to the election.
Far more damning is the attempts at getting Twitter's information outside the normal search warrant process. Twitter and its staff are vindicated in this regard, they appear to not have given in to the FBI's requests in 2020. A caveat to this, however, is that we don't necessarily know why they shut off this access in the first place, and how long it was open before that.
A secondary objection of mine is the blurring of public and private boundary with how intelligence officials and agencies were coordinating with and sharing classified information with these companies in an effort to get them on-board with doing work for the FBI. It's difficult to articulate what I precisely find problematic here. The closest I could come to explaining my feelings here is that I don't want these people to ever be more than formal acquaintances because it ends up reducing the chance of them acting as independent stations of power.
Sorry, I didn't realise we were in the "Twin Peaks" timeline.
See, what my mind thought was: E-Elvis-Chan...!
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I thought is was fairly oblivious with the $99 Trump photoshopped as Superman trading cards.
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It's not clear it's the FBI's role is to prevent disclosure of information from something like the 2016 DNC-style hack. They could arguably be charged with preventing such hacks, but going further than that runs into first amendment issues real quick.
I'd also separately be very interested in the background behind things like the Aspen Digital meetup cited here, given other summaries. The Aspen Institute is technically a NGO, but it'd also be trivial for it to act as a cutout for government agencies, and Garrett himself has a comfy relationship to the FBI specifically.
Maybe there's some more plausible explanation, given everything else; perhaps the Aspen Digital wargame also had a few dozen other examples ranging from red-tribe-leaning to the non-political. But the incredible specificity to something that the FBI knew or should have known could have occurred without a foreign intelligence nexus (either their own people leaking, or Hunter fucking up somewhere they couldn't clean up fast enough) is... looking like at best the FBI trying to clean up potential problems ahead of time.
I think the trivial objection is that far less direct entanglement has been treated as a violation of rights as a government actor in other environments. I'm sure the FBI's lawyers signed it off and no one would have standing to challenge it anyway, but the extent and degree that the FBI here appears to be pushing and providing recompense to people for the purpose of limiting political speech is a big deal, and worse than I expected to find.
What @Gdanning said below notwithstanding, it would be incredibly stupid of Twitter to leak these documents if Leaders were applicable here and someone could conceivably have standing because that would just expose them to liability.
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That is a very odd citation for your claim, given that the district court said:
Leaders of a Beautiful Struggle v. BPD, 456 F.Supp.3d 699, 707-708 (2020) (emphasis added).
Any argument that Twitter was a state actor must be based on a completely different theory.
I don't think there is a particularly severe difference between the Baltimore Professional Services Agreement and the contractual repayments present here, nor between the exclusivity of reading 9-11 reports in the Baltimore case and the access to classified documents in this one, or to the extent such a difference exists, that it favors the FBI here.
EDIT: to be clear, I think they fall under the state actor doctrine, too: it's the too that's an emphasis.
I would contend that it is logically impossible for the government to request you to do anything without the (at least implicit) threat of forcible compulsion if you don't.
These people have a stupendous power imbalance over you and a monopoly on violence, they're (figuratively) tapping their truncheon in every interaction they have with everyone ever.
Is it not true that Twitter denied most of the removal requests? And, people refuse to cooperate with police every day of the week on the streets of every city in the country. . Similarly, public spirited people happily cooperate with police requests every day of the week. So, the implicit claim you are making -- that every govt request is so inherently coercive that it transforms every private compliance therewith into state action as a matter of law -- doesn't make much sense.
I don't understand why you think that the rest of your post constitutes evidence to this conclusion.
People stand up to violent bullies some of the time despite the threat to their physical health - this analogising to Twitter denying requests sometimes. And if you poiny a gun at s and tell me to eat a slice of delicious pizza, I'll eat the delicious pizza happily - but your gun-waving is incidental to the process, this analogising to people co-operating with police (to do things they wanted to do anyway, like snitch on disliked neighbours).
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Where are you getting this from?
And a 2021 report by the Election Integrity Partnership at Stanford University found that of nearly 4,800 flagged items, technology platforms took action on 35 percent — either removing, labeling, or soft-blocking speech, meaning the users were only able to view content after bypassing a warning screen. The research was done “in consultation with CISA,” the Cybersecurity and Infrastructure Security Agency.
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The Intercept article on the DHS' attempt at something similar had this to say.
This isn't the government per-se, but I think this is where the idea of Twitter rejecting most requests might come from.
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In the Twitter case, Twitter received 3.4 million dollars in compensation from the FBI for its time reviewing takedown requests from the FBI.
In Beautiful Struggle, the company was paid solely by a private foundation sponsorship; I don’t know what the city contract actually provided.
I don’t think the distinction is meaningfully dispositive, any more than I think ignoring the funding path in favor of a purely org-chart approach would have made sense for Marsh, or even a ‘who can fire’ standard in some theoretical case. But I do think the lack of meaningfully dispositive traits makes the standard a farce.
There's... issues with Masnick's analysis
Most overtly, the part of the Twitter government order transparency page that Masnick screencaps is not limited to programs covered by 2706, nor court orders (EDRs, as 'voluntary' 212 requests, do not), nor FBI-originated requests, nor even federally-originated requests, so his base assumptions don't even make sense. Nor does his insistence that everything gets reviewed by a court, as the statute itself notices that the program can cover programs where "(or the court before which a criminal prosecution relating to such information would be brought, if no court order was issued for production of the information)." Similarly, Masnick compares compliance with general legal demands (regardless of source or type) with compliance with the FBI's totally not-legal-request we swear reporting, which is very much apples to oranges.
There is a table in that transparency report that at least separates out the federal-originated requests, albeit not by agency or by type of request, and is shows that federal requests made up around 70% of total information requests, which alone makes the compensation schema look increasingly lopsided (on top of Masnick apparently rounding up early and often).
But most seriously, Masnick ignores the "This money is used by LP for things like the TTR and other LE-related projects (LE training, tooling, etc.)." If Masnick's defense is that the compensation agreement from the FBI to Twitter did not specifically say 'this cash is for shutting up conservatives', then sure, I think that's exceptionally likely. As I said in the first post in this thread, I'm sure the FBI had lawyers signing off every single part (sometimes literally!) to make sure it was at least close enough to legal as to be unchallengable. But the vast majority of 2706 compensations are by sole agreement between the agency and the corporation, and if you check numbers even slightly harder than Masnick these compensations are wildly out-of-range under even the most charitable assumptions. And when an outsized amount of the unused money gets used for the broader legal response that just so happens to include the people responding to the FBI's non-legal takedown requests... well, it's probably still legal, but it's still the FBI paying for Twitter's review of takedown requests.
If you really want to nitpick that it's not compensation for review of takedown requests, it's just wildly outsized compensation for some unknown class of government requests, where the extra money happened to get used for takedown requests, fair, I'll give you that.
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I think it is fair to ask if commenting on the Twitter files to at least read them. It only takes about 5 minutes give or take a few.
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Tweet #46
Ironically it looks like prior to 2019 Twitter was doing the work of responding/complying/working with the FBI for free.
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As implied by the CRS report I linked to, whether the FBI involvement renders Twitter a state actor and hence demonstrates that the FBI violated the First Amendment is an open and difficult question. My only point is that the case you linked to is irrelevant, because there is no way that Twitter was "exercis[ing] powers that are traditionally the exclusive prerogative of the state," which is the only reason the BPD was on the hook in that case. Indeed, that case is a very easy one; as noted, the defendants conceded the issue. That is how obvious the case was. It tells us noting about the legal implications of the FBI actions re Twitter.
Twitter had its staff going into classified briefings, and was (uh, charitably) acting to counter international security threats. I think this is pretty close to the "traditional exclusive prerogative of the state".
How much do you think Twitter should be liable for, just as a ballpark estimate?
Probably not much; 1983 suits tend to be messy in the best of circumstances where there is clearly defined harm, and almost all of the actions here involved either de minimis damages and/or very indirect harm of the sort of that civil courts do not generally rate very highly. A saner world would probably have some class action-esque lawsuit that'd probably pay within an order of magnitude of 10 USD per improperly or unlawfully deplatformed user, but modern class actions are basically only useful for paying lawyers.
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If you look at the relevant case law, you will see that it is not even close. Edit: "This is considered 'an arduous standard to satisfy[.]'" Chilcoat v. Odell, 517 F.Supp.3d 1299 (2021). Note that it is exercising power that is required, not attending briefings or helping law enforcement. Pvt parties cooperate with LEall the time. I attended a continuing ed training on this precise issue literally two days ago. The public function doctrine is very narrow. I would encourage you to read the CRS link in my original post; that is where your best arguments can be found, because it is all about when cooperation crosses the line into state action.
If you're making the legal realist argument that the courts won't recognize it as such, and don't want to open this can of worms, than I totally agree with you; perhaps even the Beautiful Struggle would have fallen had the Baltimore office not conceded that point. But it's very hard to see a principled distinction in the facts, even for the central cases of the doctrine.
That's especially true given the often-square-peg-round-hole nature of the doctrine: Terry v. Adams was clearly trying to find any way to break private blocks against African-American-preferred candidates, but the Jaybird Association had no state-like powers to exercise, merely outside influence on a different private organization that in turn had outsized influence on facially-neutral rules that favored it. The company town in Marsh v. Alabama did not perform arrests or convictions by its own staff; it merely reported a private sidewalk trespasser to police, a power later courts have allowed private businesses to use even against public sidewalk trespassers in some conditions. The park in Evans v. Newton had no powers at all; it 'merely' received public largess and benefits in its role as a transparent cutout for the discriminatory interests of the state. The difference is that these people were all assholes, in ways that judges care about, but that's not an especially compelling story.But even beyond that, it's not that Twitter was cooperating with law enforcement. Nor would my objection apply if Twitter were just a random forum for public speech, as specifically excluded by Hudson (though see Marsh). It's not even (just) that Twitter was operating at FBI beck and call. It's that Twitter was taking a role that the federal government has long precluded private actors from engaging with: if you or I start to fuck with classified documents at best the FBI starts to look for leakers if it doesn't just start to subpoena us; the role of the federal government as the authority for common defense dates back to at least the era of privateers and the FBI can and does regularly investigate people who try to solo it. These are not 'traditional exercises of power' limited to the state, but neither in turn was the trespassing charge in Marsh nor the park management in Evans.((And, to be fair, my objections are not limited to the case: the public function test regarding prisons is a clusterfuck and anyone paying attention knows why.))
Yes, if I had to argue it in front of SCOTUS, I'd probably take a better-explored and not-explicitly-disclaimed prong -- though it's worth noting how defunct the modern 'entwinement' tests of the state actor doctrine are, in turn, outside of very limited racial or religious discrimination contexts (bit of an overlap with Evans and Marsh there, isn't it), and how much of a mess the question of whether the joint action doctrine even exists is. And despite those limitations, I think the joint action doctrine (while barely described in the CRS report) would still probably be more likely to succeed.But as a moral argument, and especially one from a libertarian perspective, this is a damning behavior from the public function one. Any other read would permit any private actor moving within the state's role and at the state's direction to cheerily violate rights coincident with its state-given power, even when at state direction.EDIT: I don't retract the above, but I do think it's a distraction. If the broader state action doctrine not only covers the Baltimore case -- where the private company did not have the ability to bring charges as in Chilcoat's hypothetical, nor get pay and specific command as in this case -- but does so with such clarity that no defense is plausible, the exact terms and reasons that separate it from matter, but even if their clearly post-hoc manner happened to coincidentally support the modern abuses of power that would not make them good.
No, I am not making that argument.
Then, quite honestly, you don't understand the doctrine. As evidenced by this argument: "It's that Twitter was taking a role that the federal government has long precluded private actors from engaging with: if you or I start to fuck with classified documents at best the FBI starts to look for leakers if it doesn't just start to subpoena us." Leaving aside that you are conflating unauthorized disclosure of classified material with authorized disclosure, which happens for more trivial reasons than those at issue here -- as noted, the public function doctrine is "'an arduous standard to satisfy'" and looking at documents doesn't cut it. In Terry v. Adams a private entity was running elections; in Marsh, a private company was the government, since it was a company town. And, it is simply incorrect to say that "[t]company town in Marsh v. Alabama did not perform arrests or convictions by its own staff; it merely reported a private sidewalk trespasser to police"; in fact, "A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman," 526 US at 502, and "[w]hen [appellant] was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff arrested her," 526 US at 503.
As for Evans, these are the facts:
As I said before, the relationship between Twitter and the FBI might satisfy other bases for finding state action, but the claim that it meets the "public function" test is frivolous, and hence so, too, is the claim that Leaders of a Beautiful Struggle v. BPD is relevant, let alone that it shows that the FBI acted illegally.
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One thing I've always found weird about this story is why I'm supposed to care about the provenance of the leak so long as it's credible. If it's a "fabricate and leak" operation, sure, and if the hackers are breaking the law I'd like them punished for it. But if the information is true and pertinent to voter why would that justify suppressing it? We aren't a court of law and the character of the people on display is most of the point. If Rittenhouse was running for public office that video they didn't let into the court of him talking about wishing he had his gun while watching shoplifters should definitely be in play. Same is true for the shit on Hunter's laptop. If someone has burned a zero day to hack something totally disqualifying on Trump no one would be batting an eye at spreading it as widely as possible.
I think the steelman is that selectively excerpting the truth can be misleading. /r/politics certainly likes to talk about the supposed materials Russia hacked from the GOP and never released. Mind, I've never seen any evidence that actually happened, so this sounds a lot like a "both sides" cope. And, uh, even if both sides have skeletons in the closest, it seems like a stretch to argue that means both sides should get to keep them secret.
Further that is an evergreen objection to any investigative journalism of a candidate.
It also falls flat when Twitter didn’t curtail the publishing of Trump’s tax returns.
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It's an extended political pastiche of a bad boyfriend: Sure, yeah I was texting her but why did you go through my phone? That's the real problem, you don't trust me. How can I be with a girl when there's no trust in our relationship? I'm not even going to talk about the cheating until we address the trust issues.
A cheater with sufficient chutzpah can not just convince herself that his snooping was the real problem, so controlling! and no trust!, She'll convince herself that his snooping proved she was right to cheat on him, retroactively justifying the cheating that was discovered in the snooping. If he never trusted me, then I was right to cheat on him. Reverse causation worthy of Yudkowsky!
The provenance doesn't just distract, it can actually justify the bad behavior.
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I don’t think twitter is look awful in these exchanges. They have a heavy left bias and act on it. Nothing we didn’t know. With the power of twitter to dominate the narrative I don’t think it’s a good thing to have the predominant speech platform dominated by one side but the right would probably be worse if they controlled it. All the pronoun people would have been banned.
The FBI and alphabets look as bad as I thought they were since they do have a true mandate to be neutral and not interfere with elections.
The FBI had the Hunter laptop for nearly a year. What did these people know? Did they knowingly misinform the American people on a true story? Baker was a higher up fbi guy when they had the laptop. What did he know.
The fbi was paying twitter. Granted it comes off as reimbursing for expenses but paying and requesting censorship gets well past the “twitter is a private company and Can do what they want” into a direct bribe for censorship plot.
How often did they interfere with Israelis twittering about American politics?
How many pro-Biden accounts were run by non-Americans and band?
Are non-Americans allowed to tweet about American politics? Does it depend on if they openly state that they aren't American? Can a British person have a pro-Biden twitter account? What if 100%. 50% oor 10%? of Tweets are about American politics?
It would be impossible to come up with an objective set of rules or goals that was imposed by the FBI and it fairly clear that the FBI was actively campaigning for a side in an election.
Ya i see no reason why foreign nationals should be limited in their discussion of US politics. First of all the US has a long arm and what we do effects them as much as their own government. So their speech is about the only thing they can do.
The problem with taking this stance is that you arrive at the conclusion that a Macedonian troll farm spamming pro-Trump propaganda and funded by the Russian state then becomes this is fine. They're just foreigners discussing American politics, why would anyone complain?
Whats the problem with a bunch of bots talking to themsleves?
But overall I have no problem with bots not getting promoted to others since their low quality and not human.
Giving bots human rights isn’t a core belief of mine or an American value (humans get free speech).
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You are discussing American politics.
He is uncritically propagating fake news.
I am peddling Russian/Chinese disinformation.
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I have not been following the Twitter files particularly closely (nor am I a fan of Elon), but I think you're right here: while some of the actions are plausibly shady, it's unclear exactly where the lines that might have been crossed are. In particular, private parties like Twitter presumably have a right to report and discuss things with law enforcement. And law enforcement is allowed to ask nicely for data that would require a warrant to compel. In this instance, none of that data would seem to incriminate Twitter, so they might well choose to share it: props to them for choosing not to do so. Twitter can choose to hire ex-FBI folks -- indeed, for reducing certain unsavory criminal activities on their network, one can imagine that ex-FBI agents are in fact quite relevant subject matter experts on things.
There's certainly a level of implicit or explicit threat that would be too far, but I'm not sure I could pin that down. I haven't seen any particular suggestion of a clear, flagrant violation. The Hunter Biden laptop stuff (which seems to have been incorrectly flagged) gets quite close, but I haven't seen enough evidence to convince me that either side was deliberately acting in bad faith. I don't like that Twitter's moderation seems to have had quite the political bias, but that is an annoyance, not a crime.
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They literally had a hack and dump scenario with Hunter Biden. Isnt that a bit of a smoking gun?
And the fbi was in possession of the laptop. If this isn’t direct interference in an election then I don’t know what is. The fbi literally knew the laptop was real and not a hack then misinformed the American people which led to a change in election outcomes.
I concur. This is shaping up to be the biggest American scandal ever — or at least it should be but won’t.
yeah this is orders of magnitude worse than the iran contra affair - i mean sure IC had sweeping geopolitical implications and directly exposed the judicial system of being a dog and pony show but this hunter biden laptop dick pic story, now this is the real deal.
Your sarcasm aside, the story is that Joe Biden and his family effectuated a pay to play scheme. Not good. dismissing it as dick pics is one of the lowest cheapest ways to distract from the meat. You latch on to the sensational to avoid having to discuss the substance.
But my whole post (and Sliders) wasn’t about Biden directly. It was the FBI and the IC interfering in an U.S. presidential election to help one major candidate. That is a major scandal far worse than Iran Contra.
The substance is that Hunter Biden attempted to leverage his father's political status to elevate his personal business prospects. This is shady as fuck, but lots of connected people have shitty kids, its not that big of a deal unless Joe Biden was a willing participant, which as far as i can tell hasn't been shown.
How is the FBI pulling strings at twitter to suppress the distribution of this laptop's contents "interfering in an U.S. presidential election"? Is there any source that shows that the FBI knew that there was no planted information on that laptop? I just think we are applying the clarity of hindsight to a situation that may have been murky at the time, and also assuming a lot of motives. Beyond all that i think funding terrorist organizations in nicaragua and iran is a bit more scandalous than the fbi running interference on a laptop of questionable importance.
There are multiple incidents within the Hunter files showing Joe was involved. There is also testimony. Is it conclusive? No. But there is a decent amount of smoke.
As for the FBI, the evidence is (1) they had the info for a long time (and so were able to test the validity of it — it wasn’t new to them contrary to what you are saying), (2) they kept prompting Twitter (and Facebook) that a hack was going to be coming, (3) an NGO (which had overlapping people it seems) specifically war gamed with Twitter executive a hack and dump of Hunter Biden, and (iv) connected former FBI agents at Twitter pushed to ban the story.
So they knew the laptop was real, they were aware the info might be coming up, they primed the social media networks to think any leak — especially one connected to Hunter — would be illegitimate, and they had personal at Twitter who knew better but pushed in the opposite direction. That is election interference your attempts to downplay the severity of the details.
And yes, it is more scandalous compared to the IC interfering in third world countries. IC doing shady shit in third countries while not great is relatively par for the course for shady organizations such as the IC. But IC interfering in a domestic presidential election because one of the candidates was against the IC? That is eliminating civilian control of the IC; effectively usurping the constitutional order that the president is in charge of the executive.
Lots of smoke no concrete proof, sorry but that's not the biggest scandal in US history by a long shot.
You literally don't know that the FBI knew it was "real", you are just assuming and assigning malice.
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As an aside, I don't think you can call focusing on the dick pics distracting from the meat.
Ah Fruck, I can’t believe you’ve done this.
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distracted by the meat
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Bravo
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