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naraburns  nihil supernum  3yr ago (text post)   17429 thread views

Culture War Roundup for the week of December 19, 2022

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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.

or threatening them with forcible compulsion if they didn't

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.

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).

Is it not true that Twitter denied most of the removal requests?

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.

Your source to Twitter not complying with a majority of FBI requests is that private actor EIP's JIRA platform 'only' getting 35% of flagged URLs moderated on a mix of four different social media websites?

(why does the final report not break down anything except TikTok or even give a timeline on when the final data collect was run? Wtf?)

Well, perhaps that is not the source I was remembering. Or, perhaps I misremembered what the source said. There is, after all, a reason that I stated my comment as a question.

The Intercept article on the DHS' attempt at something similar had this to say.

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.

This isn't the government per-se, but I think this is where the idea of Twitter rejecting most requests might come from.

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.

I don't think anyone was expecting a victory through a court system rigged that thoroughly. These findings are just ammunition for a future, more summary judgement obtained through a political process.

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.

Tweet #46

46 The FBI’s influence campaign may have been helped by the fact that it was paying Twitter millions of dollars for its staff time.

“I am happy to report we have collected $3,415,323 since October 2019!” reports an associate of Jim Baker in early 2021.

Ironically it looks like prior to 2019 Twitter was doing the work of responding/complying/working with the FBI for free.

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.

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.

If you're making the legal realist argument

No, I am not making that argument.

But it's very hard to see a principled distinction in the facts, even for the central cases of the doctrine.

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:

If a testator wanted to leave a school or center for the use of one race only, and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered.

This park, however, is in a different posture. For years, it was an integral part of the City of Macon's activities. From the pleadings we assume it was swept, manicured, watered, patroled, and maintained by the city as a public facility for whites only, as well as granted tax exemption under Ga.Code Ann. § 92-201. The momentum it acquired as a public facility is certainly not dissipated ipso facto by the appointment of "private" trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will, in time, be dissipated is wholly conjectural. If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment, just as the private utility in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 462, remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs. We only hold that, where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.

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.

I've got some quibbles with your summaries, but as in above edit, I think they're distractions compared to the standard itself being nonsensical. That payment is dispositive one direction and never the others (and indeed, payment and command is not dispositive even for the entanglement and joint action tests!) makes a mockery of the system, as does the bit where you can not name the "exercising power" that was so clear in Beautiful Struggle that no one could even contest it.

  1. Now you are making a completely different claim than you originally did. You are now saying that the standard is nonsensical. Maybe it is, but that was not your original claim. Your claim was that Leaders of the Beautiful Struggle shows that "far less direct entanglement has been treated as a violation of rights as a government actor in other environments." Yet, that case was not a "direct entanglement" case, so it does not show that at all.

  2. I am unclear why you think payment should be dispositive for the public function test. The whole focus of the test is on what the private actor is doing. Are they paid to "exercise powers that are traditionally the exclusive prerogative of the state," or not? After all, if the private actor is "exercis[ing] powers that are traditionally the exclusive prerogative of the state," then it is state action even if it doesn’t get paid at all. Eg, if anything, the organization in Terry v Adams spent money to run elections rather than being paid to do so.

  3. As for the "exercising power" that was at issue in Leaders of the Beautiful Struggle, note that I never said that it was correctly decided. Given that the BPD conceded the issue, there aren't a lot of details. But it does seem that the BPD offloaded their criminal surveillance to a private party, which is not remotely the same as cooperating with Twitter re Twitter's existing program re combating disinformation. That's what makes this an entanglement case, not a public function case.

  4. Also, if as you note above, the state action case law is a mess, then that is a powerful rebuttal of people, on here or elsewhere, who claim that what the FBI did was "clearly illegal."

  5. Finally, re your edit, if you think that it is all a distraction, you are missing the point. I have already said repeatedly that there might, or might not, have been state action under the proper test, and whether the actions of the FBI are "good" or not is a completely different issue (and one which, btw, is completely inappropriate for this site, since most who post here seem not to be particularly interested in such abstract principles, but rather only is what can plausibly (or often implausibly) spun to show that their outgroup is evil, or that their ingroup is being victimized somehow.

Your claim was that Leaders of the Beautiful Struggle shows that "far less direct entanglement has been treated as a violation of rights as a government actor in other environments." Yet, that case was not a "direct entanglement" case, so it does not show that at all.

"Direct entanglement" is, as far as I know, only a First Amendment standard in the context of religion, as contrasted with the three four mumble mumble state actor doctrine tests. My point was not to use it as a legal term of art, but to use it in the colloquial sense.

I am unclear why you think payment should be dispositive for the public function test.

That's the neat thing! I don't! But it's interesting that the deputy sheriff's pay in Marsh v. Alabama vastly outweighs the (tbf, probably merely paper) org chart role, in that one case, in your mind.

((yes, the dicta makes clear that Marsh's public function wasn't even using the same theory as modern ones so much as being the fig leaf that later versions claimed their history from :

"The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation"

(citations omitted) This has almost nothing to do with the modern 'traditionally exclusive prerogative of the state' standard, and often is in direct contradiction with it, so yada yada. But if you think the company funding of the deputy proves that the corporation was doing the arrest, that seems like it would be the deeper ethical and philosophical question.))

The whole focus of the test is on what the private actor is doing. Are they paid to "exercise powers that are traditionally the exclusive prerogative of the state," or not?

This is the sort of thing that allows the courts to jump up and down in levels of specificity and connection to achieve the goal desired.

note that I never said that it was correctly decided.

I didn't say I thought that it was or wasn't, or even particularly cared about that specific case. If you've got a more recent high-profile case where the courts were willing to find any of the state actor doctrine tests, I can go with that instead.

But I think the contrast is meaningful, and the fallback of an en banc at the Fourth Circuit just being incompetently argued or wrongly decided doesn't actually defend the standard or the norm. Not least of all given that we have in very recent memory a very incompetent federal administration that could have just as easily decided to absolutely crash a few dozen programs, and now the norm to defend the law is gone and has been gone for decades, he could even do it intentionally.

Given that the BPD conceded the issue, there aren't a lot of details. But it does seem that the BPD offloaded their criminal surveillance to a private party, which is not remotely the same as cooperating with Twitter re Twitter's existing program re combating disinformation.

Didn't you just quote Chilcoat to me, where the dicta includes the phrase "While Chilcoat concedes that performing an arrest, investigating crimes, and interrogating witnesses are not functions exclusively reserved to the State..."? What level of specificity excludes the many other programs where a police department offloads criminal surveillance to a private party (including at Twitter!), nor the long history of private investigation.

More broadly, what principled distinction holds this level of reframing the argument from applying to Twitter? Not just in the trivial sense that Twitter changed their 'existing' programs and made new programs for the FBI, but that the FBI was pretty clearly offloading part of their (long-held-to-be-federal-jurisdiction!) anti-election-manipulation efforts onto Twitter.

Also, if as you note above, the state action case law is a mess, then that is a powerful rebuttal of people, on here or elsewhere, who claim that what the FBI did was "clearly illegal."

That's fair, with perhaps some caveats for those people who separate "illegal" as a descriptive and "illegal" as a normative position.

I have already said repeatedly that there might, or might not, have been state action under the proper test, and whether the actions of the FBI are "good" or not is a completely different issue

And I've gone further to point out that every alternative test is likewise a squishy mess that overlooks the realities of government encouragement and by their strict text would allow even the most aggressive violations of rights at the direction of state power with the correct weaseling, and on top of that, no such test will ever occur thanks to the near-impossibility of bringing meaningful suit.

(and one which, btw, is completely inappropriate for this site, since most who post here seem not to be particularly interested in such abstract principles, but rather only is what can plausibly (or often implausibly) spun to show that their outgroup is evil, or that their ingroup is being victimized somehow.

... I'm going to try to be polite as I can about this, but I think this sort of aside is a better demonstration of its proclaimed evils than the actual behavior of your political opponents that you're trying to vaguely reference.

ffs, "completely inappropriate"?

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