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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.
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.
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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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