It’s been a few years since I last did a “Let me rewrite that for you” post. This idea was first suggested by the brilliant press critic Dan Froomkin. Basically, when he finds a bit of journalistic malpractice, he rewrites it the way a good journalist would, to show why the original was so wrong. The last time I did it was about some misleading coverage of the documents released by Frances Haugen by The Washington Post.
This time, I’m going to focus on a NY Times article by Maggie Astor and Rebecca Davis O’Brien. They’re politics reporters, and that often means that they’re covering the politics and not the facts when it comes to the fundamental details of what they’re reporting on. And that’s a problem. It leads to typical “view from nowhere” reporting, where you report what people are saying but not whether or not what they’re saying is true. And in this election season (especially) there should be no place for that. Learn how to report the truth, not just what candidates are saying.
The article is about RFK Jr, the perpetual crank and conspiracy-peddling independent campaigner for President, whose own family has rightly called out his bullshit and dismissed his nonsense campaign.
But what struck me was the article’s explanation of why RFK thinks Biden is somehow “more dangerous to democracy” than Trump. RFK (wrongly) thinks the Biden administration worked with social media to “censor” him:
But according to the independent presidential candidate Robert F. Kennedy Jr., it is President Biden who poses the greater threat to American democracy — a view that Mr. Kennedy shares with Mr. Trump himself, and that democracy experts called “absurd” and “preposterous.”
Such a perspective is possible because Mr. Kennedy, who has founded his political career on promoting vaccine misinformation and conspiracy theories about the government, sees the Biden administration’s efforts to curtail the spread of misinformation as a seminal issue of our time. Censorship, as he calls it, overpowers all other concerns about the political system.
Mr. Kennedy’s stance drew fresh scrutiny this week after he said in an interview on CNN, “President Biden is a much worse threat to democracy, and the reason for that is President Biden is the first candidate in history, the first president in history that has used the federal agencies to censor political speech, to censor his opponent.” He repeated himself on Fox News on Tuesday, saying that a president like Mr. Biden was “a genuine threat to our democracy.”
So, yes, these three paragraphs acknowledge RFK’s propensity for conspiracy theories and do say “censorship, as he calls it.” But you know what the best way is to drive home to users that RFK is full of shit and spewing conspiracy theories? It’s to maybe debunk the core argument in the article, the extremely misleading conspiracy theory that President Biden “has used the federal agencies to censor political speech.”
Because it simply didn’t happen. And nowhere does the article ever make that clear. It’s “the view from nowhere.” RFK Jr. said this, and we’re just going to repeat it. Let the reader figure it out for themselves whether it’s actually true or not.
Again, I recognize that these are political reporters, but part of reporting is doing the actual research. Any actual research would show that this thing that RFK is claiming, this one piece of evidence that is central to his claim that Biden is “worse than Trump,” happens to be something that simply did not happen.
We’ve gone over this before. Any reporter at the NY Times has the resources to look this up. As the article notes, RFK Jr. was spewing conspiracy theories and anti-vax nonsense. Some of that violated the rules of various social media sites, and they took appropriate action under their own rules not having anything to do with any government official, which is very much protected activity. Much of this happened during the Trump administration.
Of course, RFK Jr. lost his shit each time this has happened. In 2020, he tried suing Facebook for suspending his anti-vax org from the site. 2020. Back when Trump (not Biden) was President. He claimed it was a 1st Amendment violation because Adam Schiff had publicly complained about anti-vax nonsense on Facebook while also complaining about Section 230. That case was laughed out of court.
Plaintiff has not shown that the government so “insinuated itself into a position of interdependence” with Google or that it “exercised coercive power or has provided such significant encouragement” to Google that give rise to state action.
The court noted that even RFK admitted that he has no evidence “that the government coerced” social media platforms.
RFK also tried suing Elizabeth Warren. He claimed that she colluded with Amazon and Jeff Bezos to “modify algorithms” and hide his conspiracy theory-laden book about COVID-19. At least that time, he tried to sue a government official, rather than an internet site. But, no, the court easily rejected that one. Multiple times. Here’s the 9th Circuit pointing out that (again) RFK could show no actual impact from Warren sending an angry letter. Basically it sounds like Amazon just didn’t promote his book, because his book is nonsense.
With respect to Amazon, there is no evidence that the company changed its algorithms in response to Senator Warren’s letter, let alone that it felt compelled to do so. The plaintiffs point to the fact that, several weeks after receiving the letter, Amazon notified Chelsea Green Publishing that it would not advertise The Truth About COVID-19 even though it had promoted other Chelsea Green books in the past. This fact is unilluminating because no evidence suggests that Amazon ever advertised the plaintiffs’ book before receiving the letter. Absent such evidence, it is far more likely that Amazon’s decision not to advertise the plaintiffs’ book was a response to widespread concerns about the spread of COVID-19 misinformation rather than a response to Senator Warren’s letter.
As for the First Amendment claims:
We conclude that the plaintiffs have not raised a serious question as to whether Senator Warren’s letter constituted an unlawful threat in violation of the First Amendment. Her letter requested, but did not demand, that Amazon reevaluate its business practices regarding COVID-19 misinformation and report back any changes. The absence of a specific demand is unsurprising given that Senator Warren lacks direct regulatory authority over Amazon in this matter. There is no evidence that Amazon or any other bookseller perceived the letter as a threat, and the “potentially unlawful” language does not fundamentally alter the analysis because Senator Warren never stated or otherwise implied that there would be any adverse consequences if Amazon failed to comply with her request.
RFK Jr. filed three separate cases alleging First Amendment violations because Facebook, YouTube, and Amazon exercised editorial discretion he didn’t like (some of it during the Trump administration). Every court rejected the claim as ridiculous. The NY Times mentions none of that.
Then, as the very problematic Missouri v. Biden found some success through judge shopping, he tried to glom onto that case. First, very late in the game (i.e., just last Spring), he filed his own lawsuit against Biden using the same judge shopping process Missouri used to get the same judge. The complaint is basically a bunch of unproven nonsense. Then he tried to consolidate the case with the Missouri case that was already moving. So far that one’s on hold while we wait for the Supreme Court to rule in the Murthy case, which is the version of the Missouri case that reached the Supreme Court.
So, to summarize, RFK Jr. has filed at least four nonsense lawsuits (possibly more, but that’s all the free research the NY Times gets from me) pushing these theories that the government violated his First Amendment rights when private web companies decided that his harmful conspiracy theory nonsense might violate their rules. So far, no court has found such claims even remotely credible.
Then you have the Murthy case, which he hopes to combine his case with. As we’ve been noting the whole time, it’s based on a near total misreading and misrepresentation of what actually happened. It takes strands of public statements by public officials, combined with communications for other purposes, and assumes that it’s found some smoking gun of the government “directing,” social media to pull down content, despite no evidence that it ever actually happened. At all.
Every example shown involved plaintiffs and/or judges taking quotes entirely out of context and misrepresenting what it actually said. In some cases, the quotes were fabricated by adding in or removing words to change their meaning.
Both Democrat and Republican appointed Supreme Court Justices expressed widespread skepticism about the case when it was heard, with multiple Justices (again, across the spectrum) calling out fundamental false claims by the states.
In other words, there is zero evidence to support the claim. None. Zero. RFK is delusional or he’s just making shit up when he claims that “President Biden is the first candidate in history, the first president in history that has used the federal agencies to censor political speech, to censor his opponent.”
And if you’re the NY Times, you have to call that out.
You don’t get to “he said/she said” your way through this. Yet that’s what these reporters do. While they note the Supreme Court’s skepticism, that’s as far as they go with it:
Mr. Kennedy has long said that the government’s engagement with media companies and tech platforms — to prevent the spread of disinformation or illegal materials or, in Mr. Kennedy’s case, the arguments he and his allies made against vaccines — amounts to illegal censorship, an argument that was met with skepticism at the Supreme Court last month.
Again, a perfect opportunity to point out that none of it happened. Or to point to the failed lawsuits. But, nope.
So, NY Times, let me rewrite that for you:
For years, Robert F. Kennedy Jr. has been pushing unfounded and unsupported misinformation and conspiracy theories against the government. He continued that tradition in arguing that the Biden administration is a bigger threat to democracy than the Trump administration. This is based on unsupported claims that have been rejected by multiple courts, regarding how his own words have faced moderation from private social media companies.
Mr. Kennedy has filed multiple lawsuits alleging that the government has sought to suppress his words, all of which have failed to gain traction. In each case, the companies themselves have indicated that they made their own decisions regarding Mr. Kennedy’s accounts, which have frequently violated their rules, and were treated accordingly.
Meanwhile, Mr. Trump has a proven track record of election denial. This includes filing dozens of lawsuits to stop a fairly conducted election, followed by an unconstitutional attempt to prevent the 2020 election results from being counted. This also includes encouraging his fans to storm the Capitol to prevent the election from concluding.
Mr. Kennedy’s claims appear as fanciful as his theories on various aspects of medicine and health.
But, of course, the NY Times would never print something like that. They’d rather make sure their pages are open to Republican Senators pushing for the use of the US military on people protesting the police murdering a black man.
All the news that’s fit to print, but not enough room for the simple truth.
It’s potentially forgotten in all the other nonsense that has happened over the past four years, but the initial push to “ban TikTok” in the US started right after a bunch of TikTokers reserved fake seats for a rally that Trump’s campaign people thought was going to be mobbed by people and ended up being embarrassingly half empty.
Days later, the Trump administration suddenly announced that TikTok was a national security threat and it was going to get banned. Following that, there was a comedy of errors as the administration couldn’t figure out how to actually ban it, in part because banning a website is almost certainly unconstitutional. Eventually, a month later, Trump issued an executive order banning TikTok, and it didn’t take long for a court to say that Trump can’t actually do that, in part because of the lack of any real evidence of a security threat, and in part because of First Amendment concerns.
For what it’s worth, the same basic thing happened last year when the state of Montana also tried to ban TikTok only to have it tossed out on First Amendment grounds.
But still, as noted, Congress is really, really into banning TikTok this time around, despite the legal setbacks from the last few attempts. And it didn’t help much that last week TikTok made a hamfisted attempt to have its users call members of Congress to complain.
So, it took some by surprise when Donald Trump came out and said that he no longer supports a TikTok ban because it would only work to help Facebook.
“Without TikTok, you can make Facebook bigger, and I consider Facebook to be an enemy of the people,” Trump, who was formerly U.S. president between 2017 and 2021, said in an interview Monday on CNBC’s “Squawk Box.”
He’s 100% correct. And remember, Facebook’s parent company Meta spent years quietly running a targeted PR campaign among politicians to demonize TikTok, which was the only company in years that showed that Facebook’s supposedly dominant position as the social media king was maybe not quite as dominant as it wanted everyone to believe.
That’s quite an about face for Trump who really kicked off the entire concept of banning TikTok. But, he’s absolutely correct. Again, TikTok proved that it’s possible to build a competitive social network, and the idea that no new entrant could ever succeed in the space was laughable. Knocking TikTok out of the space, or forcing a questionable divestiture to some other giant tech company, would massively help Meta and its Facebook and Instagram properties.
But, of course, there may be other reasons that Trump has turned around on this. As he also correctly noted, there are a lot of young people who love TikTok, and shutting down the app in the US may piss off a lot of younger voters:
“There are a lot of people on TikTok that love it. There are a lot of young kids on TikTok who will go crazy without it,” Trump said.
Given that, it’s entirely possible that Trump’s decision here is just straight-up political calculus. The Democrats have been way faster to embrace TikTok than Republicans, and maybe Trump and his handlers saw last week’s flood of calls to Congress and recognized that banning TikTok may suppress the youth vote, which is more likely to go to Biden than Trump.
Of course, as many others pointed out, the flip-flop in Trump’s position also came soon after he met with billionaire Trump supporter Jeff Yass who owns a huge chunk of ByteDance, though Trump denies that had anything to do with it. Yass, however, is spending considerable effort trying to kill the bill.
That said, whether or not Yass has anything to do with this, Trump’s points are actually accurate. Banning or forcing the divestiture of TikTok would be a huge gift to Meta. It could also be a political nightmare for whoever goes through with it.
Still, there is the larger reason that Trump doesn’t mention (perhaps because he argued the other way in the past). It’s almost certainly unconstitutional. It sets a terrible precedent for supposed US freedom — one that will come with significant blowback as other countries demand that successful US companies “divest” from their operations overseas or face similar blocks. I could easily see India or Brazil or other countries demanding a similar sort of remedy and pointing to the US’s actions against TikTok as reason to support it.
Again, the TikTok ban is stupid. If you’re concerned about data exfiltration, pass a comprehensive privacy law. If you’re concerned about manipulation, then better educate the public so that they’re not so easily influenced by an app made to share short videos.
Every year, the President lays out the administration’s major agenda in the State of the Union address. For those of us who cover tech policy, there’s always some fear that something dumb will be said. In the last couple of years, Biden pushed nonsense moral panics about the evils of the internet. So, in some ways, this year’s State of the Union was a little better because it barely mentioned tech at all, and only did so in the most confusing of ways. This was basically all he said:
Pass bipartisan privacy legislation to protect our children online.
Harness — harness the promise of AI to protect us from peril. Ban AI voice impersonations and more.
The first line is… weird? Because none of the “protect our children” online bills currently being discussed could accurately be described as “privacy legislation.” Indeed, most of those “kid safety” bills would become superfluous if Congress could get its act together and pass actual comprehensive privacy legislation that limited data brokers. But somehow Congress is incapable of doing that one simple thing.
As for the AI bit, that part is also kind of nonsensical. “Harness the promise of AI to protect us from peril?” Huh? And banning AI voice impersonation is an issue way more complicated than that line makes out. There are situations where AI impersonation should be perfectly fine, and others where it’s problematic.
Honestly, it felt like those lines were just last minute add-ins to the speech when someone realized there was no mention of the “boogey man” of “big tech” and something had to be said. If that means that it’s not truly one of Biden’s priorities, I guess that’s an improvement given the nonsense from previous years.
However, along with the actual speech, Biden also released the White House’s official agenda on policy issues, and it has a lot more on tech policy, almost all of it problematic.
It starts out with him again mixing comprehensive privacy legislation with child safety. And, yes, it’s true that comprehensive privacy legislation would help child safety. It would actually help everyone’s safety and isn’t specific to children. This is good, because if it is specific to children, then it’s actually more damaging to kids. It would effectively mandate the collection of more private data to identify kids.
Protecting Americans’ Privacy and Safety Online, Especially Our Kids. Consistent with his commitment to tackle the mental health crisis, President Biden has acted to address the compelling and growing evidence that social media and other tech platforms harm mental health and wellbeing of all Americans especially our kids. In each of his State of the Union Addresses, President Biden has called for strong federal protections for Americans’ privacy, including clear limits on how companies collect, use and share highly personal data – your internet history, your personal communications, your location, and your health, genetic and biometric data. Disclosure is not enough – President Biden believes much of that data should not be collected in the first place and that young people, who are especially vulnerable online, need even stronger protections. Last month, President Biden took the most significant federal action any President has ever taken to protect Americans’ data security. His Executive Order begins a process that will stop the large-scale transfer of this data—which includes intimate insights into Americans’ health, location, and finances—to countries like China and Russia. But Congress must act. Strong bipartisan legislation is necessary to regulate the types of data that is collected, protect kids online, and ensure the privacy of all Americans, including legislation that limits targeted advertising and bans it altogether for children.
Also, it’s simply incorrect that there is “growing evidence that social media and other tech platforms harm mental health and wellbeing.” We’ve pointed out repeatedly that the evidence is incredibly mixed, and there remains no serious research showing a causal link. Some research even suggests that the impact is the other way: that those with mental health challenges end up spending more time on social media because they don’t have access to other sources of help.
Hilariously, the agenda paragraph above links to the Surgeon General’s report on the phrase “growing evidence,” but as we explained, that report does not actually show any “growing evidence” of mental health harms from social media. Instead, it admits that social media is actually very useful for many people, but says we should act as if it does harm, just in case.
So the Biden administration is lying when it says that the evidence supports these harms. It does not, and it’s disappointing that the White House is so quick to misrepresent the data here.
From there, the agenda leads into an extremely misguided and mistargeted attack on Section 230:
Holding Companies Accountable for the Harms They Cause. President Biden believes that all companies – including technology companies – should be held accountable for the harms they cause, including the content they spread and the algorithms they use. For this reason, President Biden has long called on Congress for fundamental reform to Section 230 of the Communications Decency Act, which absolves tech companies from legal responsibility for content posted on their sites. The President has also called on Congress to stop tech platforms from being used for criminal conduct, including sales of dangerous drugs like fentanyl. The Biden Administration has also used all its authorities to crack down on algorithmic discrimination and algorithmic collusion and to bring more competition back to the tech sector. The President’s vision for our economy is one in which everyone – small and midsized businesses, mom-and-pop shops, entrepreneurs – can compete on a level playing field with the biggest companies, including and perhaps especially in the tech sector. That’s why he has also worked with Congress to pass bipartisan legislation to boost funding for federal antitrust enforcers.
Again, all of this is worded in a weird way. If you read the second half, it seems to be talking about competition policy. But, as our own research has shown, having Section 230 leads to greater competition, because without it, only the largest companies could afford the liability risks associated with hosting third-party content.
Also, the bit in the middle about calling on Congress “to stop tech platforms from being used for criminal conduct, including sales of dangerous drugs like fentanyl” is particularly bizarre. Criminal conduct is, by definition, the purview of law enforcement, not private tech companies. This is like saying President Biden is calling on Congress “to stop Walmart from being used for criminal conduct like shoplifting” or “to stop Ford from being used for criminal conduct like providing getaway cars.”
Criminal activity is a law enforcement activity. You should never pin the responsibility on private platforms who are not law enforcement. And, again, Section 230 ALREADY exempts federal criminal law. So if the administration thinks that these companies are violating criminal law, the DOJ can go in and take action. The real question some reporter should ask the White House is “if you think that the companies are hiding behind 230 to avoid liability from criminal activities, why hasn’t the DOJ stepped in and taken action, since Section 230 places no limits on the DOJ?”
But somehow, no one asks that?
All President Biden is doing with these bullet points is misleading the American public. It’s a shame.
There are a variety of reasons to alter, if not actually end, the Section 702 collection. Whatever value it may have in terms of national security, the very real fact is that it has been endlessly abused by the FBI since its inception.
It’s a foreign-facing collection, which means it harvests communications and data involving foreign targets of US surveillance. But there’s a massive backdoor built into this collection. Collecting foreign communications often means collecting US persons’ communications with foreign persons or entities.
That’s where the FBI has gone interloping with alarming frequency. US persons’ communications are supposed to be masked, preventing the FBI from engaging in warrantless surveillance of US-based communications. This simply hasn’t happened. And the FBI has not only performed second-hand abuse of this collection regularly, but it has equally regularly refused to be honest with the FISA court about its activities.
The latest rejection of a clean reauthorization of Section 702 has nothing to do with the FBI’s continuous refusal to play by the rules. Instead, it has to do with the few times it decided to engage in some backdoor action that targeted the party in power or people temporarily involved with inflicting four years of Donald Trump on a nation that was definitely greater before someone started promising to make it great again.
However, the FBI — despite having abused its access for years — continues to insist the program should not be ended or altered. It has actually admitted its backdoor searches would otherwise be illegal without this program and its side benefits — something that should have hastened legislators on both sides of the political aisle to shut the whole thing down until these critical flaws were patched.
Instead, the whole thing have devolved into the expected in-fighting. Some legislators proposed meaningful reforms to the program, which were soundly rejected by a lot of Republicans simply because some Democrats were involved. The Republicans heading up the House Intelligence Committee proposed their own reforms, but the only thing they really wanted to change was the FBI’s ability to place Republicans under surveillance.
Meanwhile, the Biden Administration has decided the FBI is right, no matter how often it’s been wrong. Ignoring years of casual abuse, the Biden team has pushed for a clean reauthorization — something it may not have done if it weren’t for all the Republicans demanding (mostly for self-serving reasons) the program be ended or altered.
Unfortunately, Section 702 continues to live on, even if it’s in an unresponsive coma at the moment. Rather than let the surveillance authority expire, a bi-partisan effort did the country dirty by extending it until April 2024 where it could be further disagreed about following the return of Congressional reps to Capitol Hill.
April just isn’t good enough, apparently. The Biden Administration wants to buy even more time without any termination or authorization, presumably in hopes that the current furor will die down and this executive power will be granted a clean re-authorization. (Of course, by that point, there may be an actual Fuhrer in play, given Donald Trump’s early sweeps of critical primaries.)
The Biden administration is moving to extend a disputed warrantless surveillance program into April 2025, according to officials familiar with the matter.
The decision by the administration, which requires asking for court approval, seemed likely to roil an already turbulent debate in Congress over its fate. The program has scrambled the usual partisan lines, with members of both parties on each side of seeing the program as potentially abusive of civil liberties or as necessary for protecting national security.
This is probably preferable to holding a budget bill hostage in an executive office display of “I’ll hold my breath until I get my way.” And it’s preferable to Republican efforts to alter Section 702 simply to protect themselves from illegal surveillance. But it’s definitely not preferable to actually engaging with the inherent problems of this surveillance program, all of which seem to lead back to the FBI and its insistence on abusing its access.
This throws these problems on the back burner for another year. And it will be yet another year where the FBI abuses its access. We can make this assumption because there’s never been a year where the FBI hasn’t abused this surveillance power. Refusing to address an issue that’s been publicly acknowledged for several years now just to ensure the NSA doesn’t lose this surveillance program is irresponsible. The Biden Administration’s apparently tactic agreement with assertions made by an agency that has proven it can’t be trusted doesn’t bode well for anyone.
And, if this yearlong reprieve results in a clean reauthorization, the Biden Administration will quite possibly be handing this renewed power to Republicans now allowed to engage in their worst excesses, thanks to the re-election of Dumpster Fire Grover Cleveland.
The best thing the current administration could do at this point is allow the authority to die, which would force Republicans who love power (but hate to see it wielded against them) try to reconcile their desire for a surveillance state with the inevitable reality they will sometimes be on the receiving end of this surveillance. The worst thing it can do is what it’s doing now: pressing the pause button because it doesn’t have the desire or willingness to go head-to-head with an agency that claims — without facts in evidence — the only way it can keep this country secure from foreign threats is by warrantlessly spying on Americans.
So we’ve noted for a long while that the fixation on China and TikTok specifically has often been used by some lazy thinkers (like the FCC’s Brendan Carr) as a giant distraction from the fact the U.S. has proven too corrupt to regulate data brokers, or even to pass a baseline privacy law for the internet era. The cost of this corruption, misdirection, and distraction has been fairly obvious.
Enter the Biden administration, which this week announced that Biden was signing a new executive order that would restrict the sale of sensitive behavioral, location, financial, or other data to “countries of concern,” including Russia and China. At a speech, a senior administration official stated the new restrictions would shore up national security:
“Our current policies and laws leave open access to vast amounts of American sensitive personal data. Buying data through data brokers is currently legal in the United States, and that reflects a gap in our national security toolkit that we are working to fill with this program.”
The EO fact sheet is vague, but states the Biden administration will ask the The Departments of Justice, Homeland Security, Health and Human Services, Defense, and Veterans Affairs, to all work in concert to ensure problematic countries aren’t able to buy “large scale” data repositories filled with U.S. consumer data, and to pass new rules and regulations tightening up the flow of data broker information.
We’ve noted for a long, long time that our corrupt failure to pass a privacy law or regulate data brokers was not only a frontal assault on consumer privacy, it was easily exploitable by foreign intelligence agencies looking to build massive surveillance databases on American citizens.
It’s why it was bizarre to see lawmakers myopically fixated on banning TikTok, while ignoring the fact that our corrupt policy failures had made TikTok’s privacy issues possible in the first place.
You could ban TikTok tomorrow with a giant patriotic flourish to “fix privacy,” but if you’re not willing to rein in the hundreds of sleazy international data brokers doing the same thing (or in some cases much worse at even bigger scale), you haven’t actually accomplished much beyond posturing to get on TV.
The EO sounds at least like a first step (depending entirely on the implementation), but is filled with some flowery and revisionist language. This bit, for example:
“These actions not only align with the U.S.’ longstanding support for the trusted free flow of data, but also are consistent with U.S.’ commitment to an open Internet with strong and effective protections for individuals’ privacy and measures to preserve governments’ abilities to enforce laws and advance policies in the public interest.”
Again, we don’t have a privacy law for the internet era in 2024 not because it was too hard to write one, but because Congress is too corrupt to pass one. We have, repeatedly, made the decision to prioritize the profits of an interconnected array of extractive industries over the public welfare, public safety, and even national security.
The result has been a massive, interconnected, hyper-surveillance market that hoovers up data on your every fart down to the millimeter, bundles that data up in vast profiles, and monetizes it across the globe with very little if any real concern for exploitation and abuse. All under the pretense that because much of this data was “anonymized” (a meaningless, gibberish term), there could be no possible harm.
The result has been just a rotating crop of ugly scandals that have gotten progressively worse. All while we (mostly) sat on our hands whining about TikTok.
The FTC has been cracking down on some location data brokers, but generally lacks the resources (by design) to tackle the problem at the scale it’s occurring. They lack the resources because the over-arching policy of the U.S. government for the better part of the last generation has been to defund and defang regulators under the simplistic pretense this unleashes untold innovation (with no downside).
This myopic view of how government works is all pervasive in America, and has resulted in most corporate oversight in the U.S. having the structural integrity of damp cardboard. And it’s all about to get significantly worse courtesy of a handful of looming Supreme Court rulings aimed at eroding regulatory independence even further. There’s a very real cost for this approach, and the check has been, and will be, increasingly coming due in a wide variety of very obvious and spectacular ways.
So yes, it’s great that we’re starting to see some growing awareness about the real world costs of our corrupt failures on privacy policy. Senator Ron Wyden, in particular, has been doing an amazing job sounding the alarm on how this failure is being exploited by not just a diverse array of self-serving companies, but a surging authoritarian movement in the post-Roe era.
But it’s going to take a hell of a lot more than an EO to course correct. It’s going to take shaking Congress out of its corrupt apathy. And the only thing I think will accomplish that will be a privacy scandal so massive and unprecedented (potentially including mass fatalities or the leaking of powerful figures’ data at unprecedented scale), that elected officials have absolutely no choice but do do their fucking job.
Last month you probably saw the story about how somebody used a (sloppy) deepfake of Joe Biden in a bid to try and trick voters into staying home during the Presidential Primary. It wasn’t particularly well done; nor was it clear it reached all that many people or had much of an actual impact.
But it clearly spooked the government. FCC robocall enforcement is generally fairly feckless for reasons we’ve well discussed (short version: having strict enforcement and rules might upset corporate American debt collectors and marketing departments that use many of the same tactics as robocall scammers).
But in this case it took all of a week or two before the FCC, in cooperation with state AGs, had tracked down the culprit: a “veteran political consultant working for a rival candidate” by the name of Steve Kramer. In comments to NBC, Kramer make it rather clear that he doesn’t really quite understand the width and breadth of the tornado dumpster fire about to fall on his head:
“In a statement and interview with NBC News, Kramer expressed no remorse for creating the deepfake, in which an imitation of the president’s voice discouraged participation in New Hampshire’s Democratic presidential primary. The call launched several law enforcement investigations and provoked outcry from election officials and watchdogs.
“I’m not afraid to testify, I know why I did everything,” he said an interview late Sunday, his first since coming forward. “If a House oversight committee wants me to testify, I’m going to demand they put it on TV because I know more than them.”
While U.S. regulators are pretty feckless about robocall enforcement (especially if you’re a large company that might prove difficult to defeat in court), they’re going to nail a small fry like this to a tree in the town square to make a point.
Kramer, a well known player in Albany politics who helped the short-lived Ye campaign, appears to believe he’ll be able to tap dance around his coming legal woes by insisting that he was some kind of avante garde revolutionary or activist:
“Kramer claimed he planned the fake robocall from the start as an act of civil disobedience to call attention to the dangers of AI in politics. He compared himself to American Revolutionary heroes Paul Revere and Thomas Paine. He said more enforcement is necessary to stop people like him from doing what he did.
“This is a way for me to make a difference, and I have,” he said in the interview. “For $500, I got about $5 million worth of action, whether that be media attention or regulatory action.”
Indeed.
How much of a kick to the crotch Kramer will experience is hard to parse out, but he’s not going to have fun. The usually fairly feckless FCC is making a precedent-shifting change for his “act of civil disobedience,” declaring AI-generated robocalls illegal under the Telephone Consumer Protection Act (TCPA), which they already use to combat robocalls.
Usually the FCC (technically the FTC) sucks at collecting robocall fines because scammers (and legit companies) spoof their numbers and identities, making them hard to track down. In this case, Kramer is openly bragging about what he did, so I’d imagine the fine will be very large and hard to avoid.
For reference, right-wing propagandists Jacob Wohl and Jack Burkman were fined $5,134,500 for 1,141 illegal robocalls the duo made in a bid to confuse and mislead state voters. I’d suspect that this fine will be bigger. Kramer will also likely face a litany of lawsuits, and whatever additional charges the federal government can drum up to make an example of him. Which he claims is what he wanted, so enjoy.
As we noted last week, the Supreme Court put on hold the injunction issued by the 5th Circuit regarding the administration’s efforts to influence how social media companies deal with misinformation. As you’ll recall, Louisiana and Missouri and a variety of nonsense peddlers all sued the Biden administration, claiming that their 1st Amendment rights were violated by the administration’s actions.
The district court ruling in the case was mostly batshit crazy, taking things completely out of context and literally adding words to quotes to make it seem like people said stuff they absolutely did not. But, if you make up quotes that are not accurate, then you can claim that the White House was engaged in “censorship.” The 5th Circuit reviewed the decision and recognized it went way too far, and trimmed it way back, saying that many of the defendants shouldn’t be there (including many that the plaintiffs insisted were core to the issue), that 9 of the 10 prohibitions were too broad, and even the remaining prohibition needed to be trimmed back.
However, even the 5th Circuit’s ruling was weird. It did not clearly explain what made certain things “coercive” vs. “persuasive,” and the lack of specificity meant that it was useless in explaining to anyone what was and what was not permitted. Somewhat like the lower court ruling, the 5th Circuit ruling also took a number of quotes out of context, and the quotes shown in the ruling… are confusing. The 5th Circuit makes no effort to even explain who made the quotes or what they were in reference to. It also lumps together all of the social media platforms as if they were a single entity.
And so the White House went to the Supreme Court shadow docket, which put the 5th Circuit injunction on hold until midnight today. Just to be clear what’s going on, procedurally: the White House is in the process of doing a full appeal to the Supreme Court, which would allow for full briefing (including, I’m sure, a metric ton of amicus brief filings) and oral arguments. This process is just to see if the injunction the 5th Circuit issued last week is put on hold, or put into practice, until that case is decided on. The White House wants it put on hold. The states/nonsense peddlers want it to go into effect. As I noted in my coverage of the 5th Circuit ruling, I actually don’t think it’s that bad if it goes into effect, but I’m also sure that nonsense peddlers will use it to cause mischief, accusing many non-coercive government actions of being coercive and violating the injunction.
On Wednesday the plaintiffs in the case (Missouri, Louisiana, various nonsense peddlers) filed their brief. Yesterday, the White House filed its response. Separately there were some amicus briefs filed, though none are… um… good. Some are preposterously stupid and embarrassing. But given that the stay only exists until tonight, we’ll just focus on the main two filings.
The states/nonsense peddlers simply keep playing the same hand that has been successful to date. For example, they misquote the email Rob Flaherty sent to Facebook, suggesting it’s proof that the White House was pressuring the company to take down content:
“Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: ‘Are you guys fucking serious? I want an answer on what happened here and I want it today.’”
Except, as we’ve shown, that email was about a problem with Facebook limiting the number of followers that the POTUS account had, and had literally nothing to do with content moderation questions:
Also, the part that the states are quoting above is from the district court ruling and not the 5th Circuit injunction, which is what is on appeal. Which is… kinda weird. Basically, the states are trying to pretend that the 5th Circuit adopted the district court’s ruling, when it mostly did not.
Beyond that, there really isn’t much new in this filing beyond just saying “look, the district court ruling was right! censorship censorship!”
The White House’s response is better than I expected, honestly. It points out the ridiculousness of the standing argument by the plaintiffs (at this point, technically now respondents due to how the process works):
Respondents’ opposition underscores the remarkable breadth of the decision below. Respondents insist that any individual or entity can establish standing to challenge any government action affecting speech by any third party merely by asserting a generalized desire to hear that speech — a proposition that would effectively abolish Article III’s limitations in free-speech cases. Respondents acknowledge that the Fifth Circuit’s decision transforms private social-media platforms’ content moderation into state action subject to the First Amendment — and thus subjects the platforms to suits compelling them to distribute speech they would prefer not to host. And respondents do not deny that the injunction installs the district court as the overseer of the Executive Branch’s communications with and about the platforms, exposing thousands of government employees to the threat of contempt should the court conclude that their statements run afoul of the Fifth Circuit’s novel and vague definition of state action.
As I mentioned, above, with the states leaning so heavily on the district court’s ruling, rather than the 5th Circuit’s it creates some oddities, which the White House calls out:
Respondents also offer little or no defense of the Fifth Circuit’s key legal holdings, including its expansive understanding of the sort of “coercion” and “significant encouragement” that transform private conduct into government action. Instead, respondents repeatedly seek to plug the holes in the Fifth Circuit’s legal analysis by invoking the district court’s factual findings, which they insist must be deemed to be “established as fact.” Opp. 2. But the government vigorously disputed those findings below and the Fifth Circuit declined to rely on many of them — presumably because they are unsupported or demonstrably erroneous. Respondents’ presentation to this Court paints a deeply distorted picture by pervasively relying on those debunked findings. And respondents’ unwillingness to defend the Fifth Circuit’s holdings that the findings it did credit are sufficient to establish coercion and significant encouragement only further confirms that those holdings are wrong.
Also, the White House notes that the states/nonsense peddlers point to harms to third parties who are not party to the suit as evidence of standing, but that makes no sense:
Respondents do not and could not contend that a sweeping injunction restricting the Executive Branch’s communications with all social media platforms about all content posted by all users is necessary to prevent any direct injury to respondents themselves. Instead, they invoke purported harms to third parties who have not sought judicial relief and are not parties to this suit. Those harms to non-parties are not a valid basis for injunctive relief at all; they certainly do not justify allowing a novel and profoundly disruptive injunction to take effect before this Court has the opportunity to review it.
This is all correct.
The annoying thing here is that this issue of government jawboning is an important one, and there should be clear limits to it. The government can try to persuade, but it cannot coerce. But where is that line? In the past I’ve said that the Bantam Books case and the Backpage v. Dart cases were really useful in limiting the government’s ability to pressure private entities to censor. But there are strong arguments that neither case set out a clear, applicable standard.
In this case, I’m uncomfortable with the overall arguments of both sides. The White House wants to push the line on what is and what is not coercive too far to the permissive side. I don’t think it should go as far as they want. But the states/nonsense peddlers are taking a much more ridiculous line, saying that basically government officials can do nothing (unless they’re Republican, in which case they can do anything).
But, as of right now, we don’t have a clear judicial standard on where that line is drawn.
This case is an opportunity to set such a standard, but given (1) the nonsense being peddled by the plaintiffs, (2) the ridiculously problematic district court ruling, (3) the unexplainable vagueness in the 5th Circuit ruling, and (4) the partisan nature of the Supreme Court… I’m not at all sure that this case is going to lead to a clear and applicable standard.
This is frustrating. One would hope that the Supreme Court would allow the stay to remain in place and allow for a full briefing/hearing on the issues here. It’s a complex case, but the docket is mostly full of FUD and nonsense, which is not a great start for finding where the proper line is.
We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
The National Highway Traffic Safety Administration (NHTSA) has backed off of its ill-advised opposition to right to repair after presumably getting an earful from reformers and the Biden administration.
This past June, NHTSA issued guidance advising the auto industry to basically ignore Massachusetts’ new right to repair law, which required that all modern vehicle systems be accessible via a standardized, transparent platform allowing owners and repair shops to access vehicle data via a mobile device. The industry’s justification: the new law would harm consumer privacy and security:
“While NHTSA has stressed that it is important for consumers to continue to have the ability to choose where to have their vehicles serviced and repaired, consumers must be afforded choice in a manner that does not pose an unreasonable risk to motor vehicle safety.”
Except that’s… not true. Not only was the NHTSA’s intervention not helpful and not based in fact, it effectively undermined the Biden Administration’s claims it supports extremely popular right to repair reforms. It also undermined Massachusetts voters, whose representatives had approved the law 75-25.
An auto-industry lawsuit had already delayed implementation of the law. The industry also ran ads falsely claiming it would somehow aid sexual predators. That right to repair reform will harm consumer privacy and security in a litany of terrible ways is the standard argument for repair monopolists like the auto industry, though a recent FTC report found that the lion’s share of those claims simply weren’t true.
According to 404 Media (a new tech news outlet created from Motherboard folks fleeing the Vice bankruptcy mess), the NHTSA is backtracking from its June announcement. In a letter to MA Assistant AG Eric Haskell, the NHTSA said it found a way to “advance our mutual interest in ensuring safe consumer choice for automotive repair and maintenance. NHTSA strongly supports the right to repair.”
Right to repair activists like PIRG’s Nathan Proctor tell 404 Media the damage has already been done:
“We strongly support the goals the agency puts forward—to protect repair choice and maintain safety. However, as it stands, the agency has achieved neither goal,” he said. “Instead, it has allowed a proliferation of serious safety and monopolization issues to continue without meaningful resistance. Let’s hope this new letter signals a change in approach. We don’t plan to stop our work until cars not only are safe, but also enjoy the full slate of Right to Repair protections.”
While the NHTSA doesn’t seem in any rush to hold Tesla meaningfully accountable for the growing pile of corpses created by Tesla’s undercooked and clearly misrepresented “full self driving” car technology, it somehow found the time to undermine a hugely popular, grass roots reform effort. Great job.
Of course that’s how regulatory capture works. Repair monopolists like John Deere, Apple, and the auto industry seed the landscape with all kinds of bullshit about how being able to affordably and easily repair things you fucking own is somehow diabolically dangerous. Captured lawmakers, regulators, and governors then use those claims to either prevent right to repair laws from passing (see: California), or to undermine them if they already have (see: New York).
Well, this is not surprising, but unfortunate. With the Kids Online Safety Act (KOSA) to be debated in a Congressional hearing on Thursday, the White House had President Joe Biden come out and give a full throated endorsement of the horrible, dangerous, bill that will damage privacy and harm children.
We’ve got to hold — we’ve got to hold these platforms accountable for the national experiment they’re conducting on — on our children for profit.
Later this week, senators will debate legislation to protect kids’ privacy online, which I’ve been calling for for two years. It matters. Pass it, pass it, pass it, pass it, pass it.
I really mean it. Think about it. Do you ever get a chance to look at what your kids are looking at online?
But that’s not even remotely close to accurate about anything. Remember, the Republicans have been quite vocal about how they support KOSA because they know they can use it to suppress LGBTQ voices. They flat out said that they believe that “keeping trans content away from children is protecting kids.”
This is why so many people are up in arms about KOSA. It’s not about “protecting” kids privacy at all. It’s about giving the government more control over kids. The nature of the bill will require more data collection, not less. It will create serious 1st Amendment concerns by holding companies potentially liable if kids face harm that can be (indirectly) traced back to anything they found online.
This bill is not about privacy, because it will put private data at risk.
This bill is not about kids’ safety, because it will put their safety at risk.
It is not about parental oversight, because it takes those issues out of the hands of parents.
It is not about helping kids, because it’s going to shield kids from useful information that has literally saved lives.
The Republicans seem to know all this and are embracing it for these reasons. Which leaves a big question open: why are the Democrats supporting it at all?