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naraburns  nihil supernum  3yr ago (text post)   17427 thread views

Culture War Roundup for the week of December 19, 2022

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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.

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.

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.

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.

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.

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:

A private entity may be held liable under § 1983 when it "has exercised powers that are traditionally the exclusive prerogative of the state." Conner, 42 F.3d at 224 (quoting Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S. Ct. 2777 (1982)).

In this case, Persistent Surveillance System's actions may be attributable to the Baltimore Police Department for purposes of assessing the Plaintiffs' § 1983 claims. The Baltimore Police Department and Persistent Surveillance Systems have entered into a Professional Services Agreement, ratified by the Baltimore City Board of Estimates, to conduct aerial surveillance over Baltimore. As Defendants conceded during the Preliminary Injunction Hearing, Persistent Surveillance Systems would be exercising powers which are traditionally within the exclusive domain of the BPD when undertaking the actions authorized by the Professional Services Agreement.

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.

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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