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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.
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.
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.
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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