Trump Allegedly Demanded Parler Kick Off His Critics If It Wanted Him On The Platform

from the so-free-speechy dept

There has been a lot of speculation regarding whether or not Donald Trump would set up his own social network or if he'd just join one of the struggling social networks which only seem to exist in order to cater to Trump's most fervent supporters. Parler, obviously, gets a lot of attention and earlier this year there were reports that, while Trump was still President, he had entered into negotiations to take an equity stake in Parler and then embrace the platform as his preferred social network. As we noted back then, "for whatever reasons, the agreement did not materialize."

A new book by Michael Wolff suggests one possible reason. It claims that Trump demanded that Parler had to block Trump's critics from its platform:

One curious point of consideration for the [Trump] family [the morning of January 6th] — prescient of the events that would shortly unfold — was a follow-up to a discussion initiated some months before by aides and family. Trump representatives, working with Trump-family members, had approached Parler, the social network backed by Bob Mercer and his daughter Rebekah, far-right exponents and large Trump contributors. They had floated a proposition that Trump, after he left office, become an active member of Parler, moving much of his social-media activity there from Twitter. In return, Trump would receive 40 percent of Parler’s gross revenues and the service would ban anyone who spoke negatively about him.

Parler was balking only at this last condition.

Of course, this is absolutely hilarious for so many reasons. For years, Trump has been whining about how social media shouldn't be allowed to ban him and his friends, and couched it in (false) claims of supporting "free speech." Yet, here he was apparently making it clear that he not only wanted active content moderation on Parler, but that the moderation had to be directed at anyone who criticized him.

How very free speechy of him.

Of course, if Parler decided it did want to do this, it could. The 1st Amendment would protect such a decision, and with it, Section 230 would protect it from being sued for such decisions.

I do wonder if this was some kind of reaction to the Knight Institute case that established that, while he was President, Trump couldn't block followers from accounts he used for conducting official Presidential business. You could see how he (and his associates) might think that a neat workaround to this 1st Amendment conundrum would be an agreement to have the platform do the blocking instead (of course, if Trump were still President, that would present another set of 1st Amendment issues, but thankfully we don't have to deal with those now).

I am, however, quite excited to see what the crew of Trump-loving folks who show up in our comments think about this. After all, they regularly insist that they really just want social media companies to never ban anyone.

Filed Under: banning critics, content moderation, donald trump, ideological bias, section 230, social media
Companies: parler

DOJ Leak Investigation Targeted Rep. Adam Schiff And His Family Members

from the how-do-you-like-those-expanded-powers-now,-Adam? dept

Former president Trump made plenty of noise about the Deep State being out to get him. But he apparently didn't see anything wrong with sending the Deep State after his enemies.

One of his main enemies was the press -- something he pointed out frequently when he still had viable social media accounts. Everyone who published anything that didn't glorify him and his actions deserved nothing more than disdain. They also, apparently, deserved DOJ investigations. The Trump White House was notoriously leaky and Trump allowed successive AGs to attempt to obtain journalists' communication records in hopes of discovering the source of multiple leaks.

One of his other nemeses was the (so-called) "Democrat" Party. Members of the opposition were also apparently targets of DOJ leak investigations. Somewhat ironically, one target was a strong supporter of unchecked surveillance and FBI abuse of NSA collections. Adam Schiff -- who inserted a loophole to allow the FBI to continue its backdoor searches of NSA collections while renewing Patriot Act powers -- was apparently singled out for the Deep State experience, according to this article by the New York Times.

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry.

This investigation centered on leaks surrounding the investigation of Trump's ties to Russia and that country's interference in the 2016 election. It began under Jeff Sessions but apparently hit a dead end. Investigators discussed shutting this investigation down, but it was revived by Trump's new DOJ lap dog, Bill Barr, when he succeeded Sessions.

Apple was hit with a gag order that prevented it from notifying Schiff and other targets about the DOJ's interest in their records. That order finally expired in 2021, nearly four years after it was issued.

Adam Schiff isn't too happy about this particular use of the DOJ's power.

Mr. Schiff called the subpoenas for data on committee members and staff another example of Mr. Trump using the Justice Department as a “cudgel against his political opponents and members of the media.”

We'll see if Schiff being on the receiving end of these powers will force him to rethink his position supporting the DOJ's use of this "cudgel" against everyday Americans who aren't on his team or work for media outlets that routinely criticize him.

And he's yet another person asking for the Inspector General to investigate the DOJ's willingness to violate trust and Constitutional amendments when conducting leak investigations. It will likely be months, if not years, before we see the end result of any investigations, but the growing chorus of voices demanding a closer look by the DOJ's oversight should make it more difficult to ignore.

The DOJ needs to answer for the abuses it has perpetrated in service to presidential administrations more interested in sealing leaks than respecting rights. And it needs to take solid, substantial steps to prevent this unfortunate history from repeating in the future, no matter who's running the country.

Filed Under: adam schiff, doj, donald trump, fbi, leaks, surveillance, vendetta, william barr
Companies: apple

Not As Surprising As You May Think: Garland DOJ Says That Trump Denying Raping E. Jean Carroll Was Official Presidential Business

from the the-doj-is-gonna-doj dept

Late last year, we covered the story of the DOJ stepping in to take over a defamation case for President Trump. As we noted at the time, the defamation case itself was pretty weak, though it's similar to a series of other defamation cases we've seen in recent times. E. Jean Carroll claimed that Donald Trump had sexually assaulted her many years ago. Trump later denied the claim, saying that it was "totally false" and saying (incorrectly, as it turns out) that he "never met this person in my life." Carroll then sued for defamation based on the denials. As noted, this kind of defamation case has popped up a few times, including a high profile one against Bill Cosby by one of his accusers as well.

What was perhaps somewhat different about the Carroll case, was that it was against the sitting president, and under the Westfall Act, if the Attorney General "certifies" that an action taken by federal employees that leads to a lawsuit against them was "within the scope of his office or employment," then the DOJ gets to insert itself into the case instead of the initial defendant (and, in a defamation case, then the case would be automatically dismissed, as you can't defame "the United States.")

So, the big question in this situation is whether or not Donald Trump denying sexually assaulting (or even meeting Carroll) was done as part of his official duties as president. I think it's a huge stretch to argue that it does -- and last fall, a judge agreed with me, denying the DOJ's attempt. The judge, Lewis Kaplan, noted that if Trump were talking about policy issues, it would be different, but denying a sexual assault from long before he was president doesn't appear to be official government business. I recognize that some people have argued otherwise, noting that since the accusations came up while he was president, and could potentially impact his job as president, commenting on the claims magically becomes the duty of the president, but that seems incredibly weak, and would effectively make the president immune from defamation claims in most instances.

Judge Kaplan went even further, though, in saying that he didn't think the president is even covered by the Westfall Act. This was surprising, but the argument was pretty compelling, with the key points being:

The president is a constitutional officer. He occupies the highest office in our nation, which is created by Article II of the Constitution. But that is not what Section 2671 requires. It speaks only of “officers . . . of any federal agency,” not officers of the United States within the meaning of the Constitution....

[....[

Because the president is at the apex of the executive branch, many think of him, in a colloquial sense, as the “head” of many federal departments, agencies, and organizations. At the very least, one might imagine that he leads some agency at the core of the executive branch. The government has not attempted to identify any such agency in its papers, but the two most obvious candidates are the Executive Office of the President (“EOP”) and the president’s cabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, is the president’s chief of staff. And even if one were to call the cabinet an “executive department” or “independent establishment” – a dubious contention – the president himself is not a member of the cabinet, although the vice president is.

After Biden won the election, many assumed that the new DOJ, under Merrick Garland, would let the matter drop. After all, would a Biden administration really want to be in court trying to kill a defamation case against Donald Trump?

But, of course, that ignores how the DOJ functions, and the importance the DOJ puts on making sure it retains this power in other, future cases. So, while it surprised many, it shouldn't be at all surprising that the DOJ is appealing the decision.

The thing that seems most important to the DOJ is whether or not the Westfall Act applies to the president. For fairly obvious reasons, any presidential administration probably wants that to remain in place:

The district court held that the President is not an “employee of the government” for purposes of the FTCA and, hence, for the Westfall Act, 28 U.S.C. § 2679(b)(1). If that were correct, no action taken by the President could give rise to tort liability on the part of the United States. And the United States could never be substituted as the defendant in a tort action against a President in his or her personal capacity, even when the conduct at issue was incontrovertibly taken within the scope of employment.

Basically, the DOJ says that even if the Court technically read the law properly, no one else has ever read the law that way.

To our knowledge, the United States has never disclaimed liability for torts committed by an executive branch employee on the ground that the employee was not employed by one of the fifteen cabinet level departments identified in 28 U.S.C. § 451. To the contrary, all three branches of government have long construed the statute broadly.

And then it argues that the district court also should have allowed the DOJ to take over the case on the grounds that Trump denying the assault was, in fact, official business. The DOJ brief notes that it was discussing "reprehensible conduct," but that it could still be done within the scope of the President's duties.

Applying these established principles to this case, the statements by then- President Trump fell within the scope of his employment. The district court’s contrary conclusion was premised on an assumption that the statements were not within the scope because “President Trump’s views on [Ms. Carroll’s] sexual assault allegation” were not pertinent to his employment since “they reveal nothing about the operation of government” (SPA53) and “[n]either the media reports nor the underlying allegations have any relationship to his official duties” (SPA58). That premise was mistaken.

When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President. Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office. Elected public officials can—and often must—address allegations regarding personal wrongdoing that inspire doubt about their suitability for office. Such wrongdoing can include not only the serious charges of criminal behavior leveled here, but a range of activities including fraud and malfeasance. Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives. Thus, in Ballenger, the D.C. Circuit concluded that a congressman acted within the scope of employment when he allegedly engaged in defamation during an interview to explain the reasons for his separation from his wife. 444 F.3d at 662. The district court’s contrary reasoning in this case fails to appreciate the responsibility that elected officials owe the public to respond to serious allegations that cast doubt on their fitness for office.

Once again, this is the DOJ and the administration doing what the DOJ and any administration is likely to do: protecting their own powers. It shouldn't be surprising, even if it feels weird that the Biden DOJ would continue down this path. It's likely going to be true in a number of other cases started by the Trump DOJ that the Biden DOJ might not have initiated, but doesn't want to hinder future powers.

Filed Under: defamation, doj, donald trump, e. jean carroll, joe biden, merrick garland, westfall act, william barr

Data Analysis Shows That Trump's Messages Still Received Tons Of Attention; Though His Disinformation Doesn't Travel As Far

from the what-censorship? dept

We've argued for a while now that social media companies removing Donald Trump's accounts were not censorship, and that he had many other avenues where he could be heard, if he chose to use them. He showed this when he later setup his own blog, though he recently shut it down after getting upset that people were mocking it for its low traffic numbers.

But direct traffic to his blog doesn't mean that he he wasn't able to get his message out there. A new data analysis by the NY Times shows that, in fact, after Trump lost his social media accounts, his message spread on social media just as well as when he had his accounts. While he may not be sending out messages as frequently, or as quite as off the cuff (and unhinged), the messages he does send out seem to get plenty of attention, thanks mostly to lapdog proxies, like Breitbart and Fox News.

One thing that became immediately clear: Mr. Trump’s most ardent supporters continue to spread his message — doing the work that he had been unable to do himself.

The top sharers of the March post included the right-wing publication Breitbart News (159,500 likes and shares), a Facebook page called “President Donald Trump Fan Club” (48,200 likes), Fox News (42,000 likes), and Jenna Ellis (36,700 likes), a lawyer who made regular television appearances as Mr. Trump’s proxy to trumpet his debunked claims of a rigged election.

That doesn't look like censorship to me.

Of course, it's not true of all his posts. Somewhat interestingly, when he's spreading direct disinformation, it doesn't seem to spread as far:

The Times analysis looked at the 10 most popular posts with election misinformation — judged by likes and shares — from Mr. Trump before the social media bans, and compared them with his 10 most popular written statements containing election misinformation after the ban. All the posts included falsehoods about the election -- that the process had been “rigged,” for instance, or that there had been extensive voter fraud.

Before the ban, Mr. Trump’s posts garnered 22.1 million likes and shares; after the ban, his posts earned 1.3 million likes and shares across Twitter and Facebook.

In many, many ways, that's fascinating. It suggests that when he's not spreading misinformation, his messages still travel about as far as before. But when they are direct disinformation, some of the intermediation of 3rd parties creates a bit of friction. That... certainly doesn't feel like censorship. It feels like a marketplace of ideas working kind of as it should?

Filed Under: content moderation, disinformation, donald trump, social media
Companies: facebook, twitter

Facebook Says Trump's 'Indefinite' Suspension Is Now Two Years Off The Platform, And Then It'll See If He'll Behave

from the i-mean,-it's-something dept

In case you've been living under a rock for all of 2021, following the January 6th mob attack at the Capitol, where then President Donald Trump went to social media and posted things that could be read as egging on his insurrectionist followers, Twitter and Facebook suspended Trump's accounts. A few weeks later, the still relatively new and untested Oversight Board that will review a few Facebook decisions agreed to review the Trump decision. In late April, it upheld the removal, but said that Facebook's decision being for an "indefinite" length violated the company's own policies, and told the company it needed to either put a time limit on it, or come up with an actual rationale for a permanent suspension.

Last week, Facebook announced its response: the suspension would now be officially for two years -- but that doesn't mean Trump will automatically get his account back (just in time to ramp up his 2024 campaign...).

We are today announcing new enforcement protocols to be applied in exceptional cases such as this, and we are confirming the time-bound penalty consistent with those protocols which we are applying to Mr. Trump’s accounts. Given the gravity of the circumstances that led to Mr. Trump’s suspension, we believe his actions constituted a severe violation of our rules which merit the highest penalty available under the new enforcement protocols. We are suspending his accounts for two years, effective from the date of the initial suspension on January 7 this year.

At the end of this period, we will look to experts to assess whether the risk to public safety has receded. We will evaluate external factors, including instances of violence, restrictions on peaceful assembly and other markers of civil unrest. If we determine that there is still a serious risk to public safety, we will extend the restriction for a set period of time and continue to re-evaluate until that risk has receded.

When the suspension is eventually lifted, there will be a strict set of rapidly escalating sanctions that will be triggered if Mr. Trump commits further violations in future, up to and including permanent removal of his pages and accounts.

As is alluded in that snippet, the company also announced an official policy that applies "heightened penalties for public figures during times of civil unrest and ongoing violence." Just the fact that this needs to be its own category of content moderation policies should tell you something about the complexity of coming up with policies that can be equally applied across all situations. Every situation is different, and no policy is going to take into account all context. Two years is the new maximum suspension under this policy:

In establishing the two year sanction for severe violations, we considered the need for it to be long enough to allow a safe period of time after the acts of incitement, to be significant enough to be a deterrent to Mr. Trump and others from committing such severe violations in future, and to be proportionate to the gravity of the violation itself.

Of course, the Oversight Board tasked Facebook with much more than just putting a timeline on Trump's suspension and Facebook buried all the details beneath the headline grabbing "two years!" announcement.

Most of those policies focus on how the company deals with high profile and influential users who are violating its policies, and how it handles whether or not certain user speech is "newsworthy" or not. In particular, politicians will no longer receive an automatic assumption that all their speech is newsworthy. Instead, that speech will be judged in the same way as anyone else's speech for newsworthiness -- or so Facebook claims. In all reality, the actual lesson in all of this is that it's not possible to judge things equally. There is always additional context that makes each situation somewhat unique.

So, honestly, the only real end result here is that politicians won't receive the assumption of newsworthiness and seem more likely to face suspensions under these new policies.

For another view on the details of how Facebook dealt with this, read Evelyn Douek's analysis, in which she suggests that Facebook is basically doing the least possible that it can, which is allowed under the somewhat weak charter it put on the Oversight Board. Many people have highlighted how weak that charter is, but this may have been the first time it's been put to the test, and shows that when Facebook really doesn't want to commit to serious change, it has ways to avoid it. I'm less convinced that's the true outcome here, and honestly given how the Oversight Board has acted so far, I suspect that this weakish response from Facebook is only likely to embolden the Oversight Board to continue to hammer the company over its failures, even if Facebook wants to avoid committing to real change in response.

Filed Under: content moderation, donald trump, newsworthy, world leaders
Companies: facebook, oversight board

Trump Bans Himself From His Own Blog; Upset That Everyone Mocked Its Terrible Traffic

from the such-cancel-culture dept

It's been quite a month for the former President, Donald Trump, and his attempts to speak out. Almost a month ago, Trump launced a Twitter-like blog, with very limited interactive features, a silly terms of service (which said they could moderate whatever they wanted, like every other site). As we noted, lots of people mocked it for being just a standard old blog, but it did make the point that despite what other social media platforms might do, Trump was not being "censored." He had lots of ways to speak up. Of course, after a couple of weeks, reports noted that the site wasn't getting very much traffic, we highlighted that this showed what the issue really was: Trump wasn't upset about a lack of ability to speak. He was upset about the lack of a free audience.

As more and more reports came out about the dwindling traffic on the site, Trump (in standard Trump fashion) insisted that the site was actually getting huge traffic, even more than last year during the election:

“The Washington Post also incorrectly reported about my DonaldJTrump.com website viewership. We have not yet launched our own social media “platform,” but even the very basic site we have to post our statements has received 36.7 million views over the past month alone, and we’re getting more traffic to our website now than in 2020, an Election year! This number would be even greater if we were still on Twitter and Facebook, but since Big Tech has illegally banned me, tens of millions of our supporters have stopped using these platforms because they’ve become “boring” and nasty.”

Of course, even if that 36.7 million number is correct -- which it likely is -- most of that was probably on the day or two after launch when people came to check it out. All of the data suggests that the traffic was a one time deal and wasn't coming back:

“As a matter of metrics, audience, readers, every single way they measure blogs—it’s a failure,” with lower traffic than sites like Petfinder and Eat This, Not That, Melber said on The Beat with Ari Melber. Citing a report by the Washington Post, Melber noted that not one of Trump’s posts on the “From the Desk of Donald J. Trump” site has gotten more than 15,000 interactions.

And now, following the bans from Twitter and Facebook, it appears that Donald Trump has banned himself from his own blog, shutting it down permanently. Trump and his spokespeople are claiming that this was part of "broader efforts" to have the former President engaged more directly with social media, and promised that details of these new efforts would be revealed soon.

Of course, the fact that they launched the blog with such hype, and talked it up so much less than a month ago, makes all of this seem (again, as per so much that is Trump) to be them just making shit up as they go along. Meanwhile, a Trump advisor admitted to the Washington Post that the reason it was shut down was that Trump was embarrassed by how little traffic it was getting and how everyone was mocking the site:

An adviser told The Washington Post’s Josh Dawsey that the former president wanted to open a new “platform” and didn’t like that this platform was being mocked and had so few readers. The individual spoke on the condition of anonymity to talk frankly about Trump’s plans.

Obviously, Trump has every right to kick himself off his own platform, just like every other website has every right to kick him off their platforms as well. I'm assuming we won't be seeing stories about Trump's "anti-conservative bias" though, huh?

In the meantime, all of this reinforces a few important things: (1) Trump has every ability to speak out if he wants to, but (2) that doesn't guarantee him an audience, and (3) building a successful website that gets traffic is hard work, and simply assuming that you can easily replicate a successful website and its audience is rarely going to work.

Filed Under: audience, blog, content moderation, donald trump, free speech, social media

DOJ Sent A Grand Jury Subpoena To Twitter Demanding The Unmasking Of A Twitter User Being Sued By Devin Nunes

from the lots-of-wtf-going-on-here dept

For the past couple of years, Devin Nunes has been suing Twitter users over obviously satirical accounts that use his name, the most famous of which is "Devin Nunes' Cow." He has yet to succeed, but he has managed to clutter the courts with a bunch of vexatious litigation that, so far, has only proved Devin's skin is mighty thin and that he should definitely make better choices when it comes to choosing legal representation.

I suppose if Nunes wants to blow money on lawsuits that are doomed to fail, that's his business. Unfortunately, the victims of his bullshit lawsuits are having their time and money sucked away by a man so apparently powerless he cannot handle criticism without getting the courts involved.

But there's a new wrinkle and some new dollars being spent. This latest development -- a few months delayed thanks to a gag order -- involves the expenditure of money contributed by a whole lot of non-parties: US taxpayers. One of the last things the Trump DOJ did before it became Biden's DOJ was send Twitter a grand jury subpoena demanding identifying information from one of the Twitter accounts being sued by Nunes. (h/t Kevin Poulsen)

Given Nunes was suing individuals in civil suits, it's hard to see how or why the Department of Justice got involved, much less why this is a grand jury issue. Sure, Nunes may have made wild allegations about RICO violations and illegal impersonation, but no one has made any credible allegations about actual criminal activity, much less federal crimes.

And yet, here we are, looking at the DOJ's (granted) request [PDF] to keep Twitter from talking about this subpoena (dated November 23, 2020) and Twitter's motion [PDF] to quash the ridiculous, First Amendment threatening demand for account information.

The only thing that can be confirmed about the DOJ's (apparently ongoing) investigation is that the government believes the NunesAlt account said something threatening to someone (presumably Nunes) at some point in time. Not that the DOJ bothered to explain any of this in its subpoena.

The Gag Order prohibits Twitter from “disclos[ing] the existence of the Subpoena to any other person (except attorneys for PROVIDER for the purpose of receiving legal advice) for a period of 90 days (commencing on the date of this Order)” because it finds “reasonable grounds to believe that such disclosure will result in flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.” Schottlaender Decl., Ex. B. The Gag Order does not describe the basis for this finding, and Twitter has not received any information from the government about the “reasonable grounds” upon which the Gag Order was based.

Twitter had to approach the DOJ to get clarification. It got some, but not much.

Twitter’s counsel asked whether the government could offer any information about its investigation that may alleviate Twitter’s concerns. Counsel for the government stated that he understood Twitter’s concerns and would attempt to learn more about the investigation and about what he could share with Twitter. Shortly thereafter, the government stated that it was investigating “potential violations of 18 U.S.C. Section 875(c) (threatening communications in interstate commerce).” Twitter asked whether the government could share the threatening communications at issue, or otherwise state whether those threats had been directed to Congressman Nunes. The government replied that it would not provide any additional information about its investigation.

That's the basis for the grand jury. And without more, it seems like a pretty specious use of federal resources. Plus, as Twitter points out in its motion to dump the subpoena, this seems to be more about making critics of Nunes feel threatened than about any threats Nunes (or someone else) received.

It appears to Twitter that the Subpoena may be related to Congressman Devin Nunes’s repeated efforts to unmask individuals behind parody accounts critical of him. His efforts to suppress critical speech are as well-publicized as they are unsuccessful. He recently sued Twitter, attempting to hold it liable for speech by the parody Twitter accounts @DevinCow, @DevinNunesMom, @fireDevinNunes, and @DevinGrapes, and asking the court in that case to order Twitter to disclose information identifying those accounts. Each of these accounts were engaged in anonymous political speech critical of Congressman Nunes. That suit was dismissed against Twitter in June 2020 because Twitter cannot be liable for information originating with a third-party user of its service, but it appears to still be an active lawsuit against the Twitter users @DevinCow and @DevinNunesMom. Shortly thereafter, Twitter received the Subpoena. Public Tweets posted by the Account indicate that it may be operated by the same user as @DevinNunesMom. Congressman Nunes’s attorney also sought third-party discovery from Twitter to unmask the @DevinCow account in an entirely unrelated case.

Given Congressman Nunes’s numerous attempts to unmask his anonymous critics on Twitter—described in detail herein—Twitter is concerned that this Subpoena is but another mechanism to attack its users’ First Amendment rights. Recent litigation also alleges that Congressman Nunes may be using the government to unmask his critics. See Declaration of Hayden Schottlaender (“Schottlaender Decl.”), Ex. D. Twitter respectfully asks the Court to determine whether the government has a “compelling interest” in obtaining the Account’s basic subscriber information, or, on the other hand, is endeavoring to unmask someone merely for engaging in speech critical of Congressman Nunes.

That's really what appears to be happening here. The DOJ decided to work on the behalf of Devin Nunes, using unproven claims of issued threats as the foundation for demands for personal info. Sure, it may just be a coincidence that the DOJ is targeting one of Nunes' critics (and lawsuit defendants), but it's asking a lot from everyone to believe this coincidence had nothing to do with the Congressman's tireless support of Donald Trump and the DOJ's own obeisance to Number 45 during Bill Barr's tenure as the Attorney General.

Twitter's concern is plausible: the DOJ was mobilized to target a critic of a powerful lawmaker over what is likely protected speech. The DOJ needs to act in utmost caution in cases like this. And maybe it did. But even if it's completely in the right, Nunes and his constant suing of critics make it difficult to see this as anything other than the federal government getting into the business of keeping Devin from having his feelings hurt.

Filed Under: 1st amendment, devin nunes, doj, donald trump, intimidation, parody, satire, subpoena, unmasking, william barr
Companies: twitter

Biden Revokes Trump's Silly Executive Order On Section 230; But It Already Did Its Damage

from the too-late dept

It's better than nothing -- especially given that Biden has been so vocal against Section 230 -- but last week, Biden rescinded Trump's ridiculous executive order about Section 230. As you may recall, almost exactly a year ago, Trump issued an absolutely insane executive order demanding the FCC reinterpret Section 230. As we noted at the time, this made no sense, as 230 was written with the explicit admonition that the point was to keep the FCC out of the business of regulating the internet.

At any point in the process, those involved in the federal government could have stood up to Trump and said that everything about the executive order was a joke and ridiculous. But, nope, that's not how things work apparently. NTIA, which was in the process of being handed over to a lawyer whose mission in life seems to be to lie about and destroy Section 230 (partly to favor his white nationalist clients), followed through on Trump's demands, and petitioned the FCC to reinterpret Section 230.

Then, Ajit Pai had every opportunity to do the right thing and say that this was way outside of the FCC's jurisdiction -- as he had years earlier before Trump even knew what Section 230 was. Instead, he let the charade play on, wasted everyone's time and energy in needing to explain to Pai why the FCC had no authority... and then ignored all of the legal precedent and every ounce of whatever principles he supposedly had, and agreed to do a rulemaking on 230. Of course, what might have suddenly drained Pai of any basic decency was the fact that when his colleague Michael O'Rielly actually spoke the truth, Trump fired him. O'Rielly came out of this nonsense with principles, while Pai came out of it looking like a Trump lapdog with no principles whatsoever.

Pai only finally ditched the idea right after January 6th when everyone was focused on the insurrection on Capitol Hill, and he realized that he could dispose of the news while Trump's attention was elsewhere.

Still, the whole thing was a huge waste of time, and has completely polluted the dialogue about Section 230 with utter nonsense. It's good that Biden rescinded the order, though it was way too late. Meanwhile, the author of the original executive order, Nathan Simington... got O'Rielly's vacant seat on the FCC, guaranteeing that the two Republicans on the Committee are now anti-1st Amendment, anti-Section 230.

Trump didn't end up getting the FCC to issue a reinterpretation of Section 230, but he still did a ton of damage to the dialogue around Section 230, with tremendous help from Adam Candeub, Nathan Simington, and Ajit Pai.

Filed Under: adam candeub, ajit pai, donald trump, fcc, joe biden, nathan simington, nist, section 230

New Jersey State Legislators Think They Can Get Trump Back On Facebook By Passing A Stupid Social Media Moderation Bill

from the keep-in-mind-the-only-legacy-you-can-really-shit-on-is-your-own dept

Facebook recently announced its decision to keep Donald Trump banned -- a decision supported by its new oversight board. That decision -- just like the original ban -- made certain people very angry and very sure a platform's decision to ban someone infringes on the First Amendment.

One of those deciding they should be the ones violating the First Amendment is New Jersey state senator Michael Testa. Announcing his ignorance on multiple platforms, Testa and a couple of like-minded state legislators declared they were finally going to do something about all of this not-actually-censorship.

Following the announcement that Facebook will uphold their ban of former President Donald Trump, Senator Michael Testa, Assemblymen Erik Simonsen and Antwan McClellan (All R-1) are introducing legislation that places penalties against social media platforms for the censorship and banning of conservative political and journalist voices.

“The muzzling of freedom of speech by social media sites, such as Facebook and Twitter, have shown that prominent conservative voices are not welcomed on the world’s leading social media platforms,” Senator Testa stated. “Today’s announcement of Facebook’s six month extension of their ban on former President Donald Trump exposes that social media has and always will control the narrative that they see fit – unless leaders take action.

It goes on for a bit more in that same vein, calling for New Jersey centric efforts to prevent the "silencing" of former presidents named Donald Trump and anyone else "King Zuckerberg does not agree with." You know, the usual idiocy that comes from people who are at their most ineffective when they're angry about stuff they don't actually understand.

There's also whatever this is:

“This is not a Republican issue nor a Democrat issue, this is an issue of protecting everyone’s First Amendment right of freedom of speech,” Assemblyman McClellan said. “No individual or corporation should have complete power to silence those who share opposing viewpoints. Our nation was built on the foundation that all Americans, regardless of race, religion, or political opinion should have the ability to freely voice their ideals and beliefs.”

Yeah, but it's mainly a Republican issue, if we're being more honest than these three New Jersey lawmakers. And making social media companies do moderation stuff with government mandates backed by the threat of fines, fees, and other punishments is the exact opposite of "protecting everyone's First Amendment rights."

The bill [PDF] has arrived and it's as ridiculous as you'd think. The new law would make social media companies engage in a whole lot more moderation related BS under the apparent theory that burying them in compliance paperwork will make them less likely to boot the Trumps of the internet off their services.

It shall be an unlawful practice and violation of the New 32 Jersey consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.), if a social media website fails to comply with the requirements set forth in this section.

A social media website shall:

a. publish the standards, including detailed definitions, it uses or has used for determining how to censor, selectively suspend, or implement anonymous content or user ban;

b. apply censorship, selectively suspend, and anonymous content or user banning standards in a consistent manner among its users on the platform;

c. notify users about any changes to user rules, terms, and agreements prior to implementing such changes;

d. not censor a user's content or material or selectively suspend a user from the social media website without providing notification to the user who posted or attempted to post the content or material, or in a way that violates State deceptive and unfair trade practices;

e. provide a mechanism for users to request the number of other users who were actually provided or shown the requesting user’s content or posts and provide users with the number of other users who were actually provided or shown that content or posts upon request;

f. categorize algorithms used for post prioritization and anonymous content or user banning and allow users to opt-out of post prioritization and anonymous content or user banning algorithm categories to allow sequential or chronological posts and content;

g. provide users with an annual notice on the use of algorithms used for post prioritization and anonymous content or user banning and reoffer annually the opt-out opportunity provided in subsection f. of this section…

In digital triplicate, one imagines. This is a long list of nuisances that will only help ensure the dominant players in the social media marketplace remain dominant. It doesn't go so far as to compel speech by forcing platforms to retain users they'd rather eject, but it does make it a challenge to comply with the law. And that's the intent, to be sure. You can tell that by all the times the legislators use the word "censor" rather than the word "moderate."

And it doesn't do anything to address the issue it claims to be addressing: namely, the banning of Trump by Facebook. If anything, Facebook's first ban and the oversight board's decision to extend the ban comply with most of these directives in terms of notifications and explanations for the moderation action.

Did I say there was no compelled speech -- one of the big no-nos of First Amendment compliance? That's only because we haven't gotten to that yet. There will be plenty of compelled speech, but only for those most deserving of uninterrupted service from social media platforms: politicians.

h. not apply or use post prioritization or anonymous content or user banning algorithms for content and material posted by or about a user who is known by the social media website to be a candidate for office from the date of qualification through the date of the election or the date the candidate ceases to be a candidate before the date of election...

There it is. It's another quasi-Fairness Doctrine -- one based on the faulty assumption that social media services go out of their way to bury posts from politicians "they" don't agree with. First off, most platforms allow users to sort their posts chronologically and/or make their own moderation decisions about the content they want to see. (See stipulation f. above.) But this attempt to address something that really isn't a problem for anyone who isn't suffering from a persecution complex allows the state to collect up to $100,000 per instance of "unfair" post sorting until platforms satisfactorily explain their algorithms and/or user preference settings to lawmakers who seem entirely uninterested in listening to them.

Finally, there's this word salad that, if you squint at it conspiratorially enough, might be a response to Twitter and Facebook banning links to the New York Post's bizarre "smoking gun" article about Hunter Biden's laptops.

not knowingly take any action to censor, selectively suspend, or anonymous content or user ban a journalistic enterprise based on the content of its publication or broadcast.

If you're curious as to wtf "anonymous content or user ban" means in the numerous places it's used in this bill, it refers to any act of banning that is "not readily apparent to a user." So, shadow-banning and things like that, although it's not clear why these reps felt compelled to make up a new term for it.

So, it's a bunch of different forms of compelled speech masquerading as a concerned-about-consumers bill. It invokes the state's consumer fraud act meaninglessly, equating actual fraud with moderation efforts by private companies -- companies that are free to choose who they do business with without committing a single act of fraud.

And if this does become a law, how would these legislators like social media companies to respond? By gathering even more identifying info to make sure New Jersey residents get all the additional notifications and faux protections the law puts in place? Or maybe suspected Jersey locals will just get a splash page notifying them they're no longer able to use these services because platforms are unable to comply with the ridiculous demands of grandstanding Trump loyalists. Whatever the outcome, it won't do what these legislators want it to do. It will only make these services less likely to welcome new users and more likely to ban content and the third parties creating it.

Filed Under: 1st amendment, compelled speech, content moderation, donald trump, michael testa, new jersey, section 230, social media
Companies: facebook