Elon Musk Still Wants Everyone (Including The Judge) To Believe His Fight With Twitter Is About Spam. It’s Not

from the that's-not-how-any-of-this-works dept

As I type this, I’m sitting in a (fairly uncomfortable) chair in the lobby of a Holiday Inn, having read through nearly 300 pages of legal filings of sniping between Elon Musk (165 pages) and Twitter (127 pages) trying to figure out how to best explain what’s in the filings in a meaningful and accurate way. Because the media coverage of this case continues to suck. For example, you may have heard that Elon Musk “countersued” Twitter. Headlines blasted that left and right and Musk’s fans lapped it up. I saw multiple tweets claiming that Musk was going to cost Twitter “so much” money by suing them back.

The reality is… less interesting than that. Musk filed his required answer and defenses to Twitter’s complaint, and, with it, included a bunch of counterclaims. This isn’t particularly surprising. It happens pretty frequently, especially in business disputes. While there are technically claims that Twitter has to respond to now, it’s all part of the same lawsuit. Also, the claims are ridiculous and clearly involved Musk’s lawyers scraping whatever dignity they had off the floor to try to come up with something… anything they could include as counterclaims.

There was a fun little side story to all of this in that Musk filed the answer and counterclaims under seal, as was required, giving Twitter some period of time to review the document to see if it included any confidential information that it wanted redacted before the document was made public. Apparently, Musk sought to speed up the date by which a public version would be released, and Twitter demanded the full five business days that it was entitled to, in order to review the document to highlight what needed to be redacted. The judge granted Twitter’s request, meaning that even though the document was filed under seal on July 29th, it wasn’t actually made public until August 5th.

But… and this is kinda funny, actually: Twitter was able to file its unredacted reply to Musk’s filing before his redacted filing was made public. And then after all that Twitter said it didn’t need any of Musk’s filing to be redacted in the first place. It’s almost as if Twitter was able to use this process to make sure that its responses to Musk’s claims were revealed effectively simultaneously with Musk’s claims. This feels a bit like playing games with the system — something courts sometimes don’t take kindly to — but given all the games Musk appears to be playing, this seems somewhat justified.

Within all of these pages there are many, many stories worth telling, and indeed, when I’m not in a Holiday Inn lobby, I’ll probably write a few more posts about certain aspects of these filings, but for now I have just a few thoughts. Again, these will not cover everything in the filings, at all. But just a few of the key things.

Musk really wants everyone, including the judge, to believe this is about spam on the platform. It’s not. Honestly, it feels like Musk’s best bet for succeeding in this case is for the judge to be an idiot, and be taken in by Musk’s nonsensical claims like many of his loyal fans. This feels like a long shot, but he’s had so much success with his cult of personality nonsense, that maybe he can pull it off one more time. I have gone into great detail as to why this case has nothing whatsoever to do with spam, so I’m not going to do it all over again.

Suffice it to say, Musk’s officially stated reason for breaking the deal is the (completely unsupported) claim that Twitter breached the purchase agreement by not giving him the information he needed to complete the deal. That’s the dispute. Musk has been trying to turn this into a story about spam, because that’s the best excuse his very expensive lawyers could come up with to try to get him out of this deal. Musk signed the deal and waived due diligence rights. He also could have had Twitter put in representations regarding the amount of spam on the platform if he was really concerned by it.

Hilariously, in his filing, Musk points to a text message conversation he had with Twitter CEO Parag Agarwal highlighting his concern about spam on the platform.

Musk uses this screenshot as part of his argument for why he wanted to buy Twitter… but it seems to undermine the very core of his own argument. Note that the date of the conversation is April 8th. That’s before he bought Twitter. Hell, that’s actually back when it was still expected that Musk would be joining Twitter’s board. It was a day before he rejected that plan, and announced his intention to purchase the site outright, a proposal that ended up with a signed agreement a little over two weeks later.

So… that sure seems like proof that Musk was concerned about spam on the platform — and if that’s the case then (1) it sure seems like he considered himself well aware of the amount of spam on the site before the deal was consummated, and actually argues in this very document that he thought he could unlock more value for the company by getting rid of the spam. If that were true, having more spam on the platform than previously believed wouldn’t much matter. He could just get rid of it all and do all the other improvements he wanted’ More importantly (2) if this were such a big concern he could have easily demanded information about it prior to doing the purchase and required that Twitter make representations regarding the amount of spam on the site which, if they turned out to be false, could scuttle the deal.

He did none of that.

Instead, he makes a fantastical case, setting out all the other stuff he’s been saying publicly about spam, to argue that Twitter committed “fraud.” But he fails to actually make a case for that. It’s all random speculation that doesn’t actually add up to anything.

He claims, repeatedly, that he relied on Twitter’s SEC filings about how much spam was on the platform, but the message to Parag undermines that. What undermines it even more is that just weeks after the deal was signed, Musk appeared at a conference and said “anyone who uses Twitter is well aware that the comment threads are filled with scam, spam, and a lot of fake accounts. It seems beyond reasonable for Twitter to claim that the number of real unique humans is above 95%.” In other words, here is Musk, soon after the deal was announced, admitting that “anyone who uses Twitter” must be aware that the amount of spam on the site is greater than what Twitter reported to the SEC.

In short, here he is admitting that at least he long believed the amount of spam on the site was way above what the company reported to the SEC, and therefore, he has admitted that he certainly didn’t actually rely on Twitter’s filings with the SEC (which, again, do not say that spam itself is less than 5% of the service — just that less than 5% is counted in the mDAU number the company reports).

Musk’s lack of understanding of some fairly basic concepts is embarrassing. Musk is supposed to be this ubergenius, right? I mean, even as I’ve sometimes criticized some of the things he’s said over the years, I definitely believed he was still incredibly smart and innovative in his thinking. But the more I see about how this whole Twitter scenario has played out, the more I wonder how he was able to succeed at anything. Over and over again in this filing, Musk basically reveals his ignorance of how some fairly basic things work.

We’ve already discussed, multiple times, in the past why Musk’s freak-out over Twitter having human reviewers look at 100 accounts per day, and not using “AI” is completely confused and misplaced. You can read that again to understand why Twitter’s statistical sampling is actually quite good here. But here’s the short version again: Musk keeps complaining that Twitter doesn’t use automation and AI to determine how much of its monetizable daily active users (mDAU) were actually spam accounts. But… that completely ignores reality, which Twitter explained both directly to Musk and to the public.

Twitter DOES use automation and AI to ban or suspend potential spam accounts. It does that on hundreds of thousands of accounts EVERY DAY. It’s only after that, that Twitter then does a spot check, by having human reviewers look at a random sample of 100 accounts per day. And while it may sound like 100 accounts per day seems like a small number, that’s only if you don’t understand statistics. 100 accounts per day is 9000 accounts per quarter (the period reviewed) and that can give you a 1% margin of error with 95% confidence. That’s good.

But, more importantly, if Twitter used AI and automation to check what was spam… the answer would be zero. Because — as Twitter and others have explained multiple times — this human review takes place after the AI and automation have already removed all the spam it could find. And that’s basically the only way you could do this. If you have automation and AI finding spam, then you shut down those accounts. The whole point of human review is to see what’s left afterwards. And you can only do that with human review, because otherwise, why wouldn’t you have used that AI and automation to find the spam in the first place.

Musk’s entire argument — repeated throughout the filings makes no sense. Twitter does use AI and automation to discover spam. It’s been quite public about that. It then checks with humans using a statistically significant sampling to determine how much spam is still there. That’s it. But Musk and his lawyers seem mentally incapable of understanding this seemingly simple fact.

Musk’s own method for calculating spam accounts is laughably bad. Musk complains a lot about how much spam he thinks is on the platform, but provides scant evidence to support his claims that Twitter’s numbers are false (and again, it doesn’t matter if they’re false, because the agreement doesn’t turn on that, but even so, he’s got no evidence). While he complains throughout the filing that Twitter didn’t give him the information he needed to replicate Twitter’s system for judging spam, he’s playing some tricks here.

The reviews are human reviews, and so Musk is basically asking for a download of Twitter employees’ brains explaining how they went through the 100 accounts that day and determined how many were spam. That’s not data you can just hand over (also, arguably, it’s also data Musk has no right to at this point under the agreement — as the information sharing is only supposed to be for the purpose of closing the deal, and Musk makes no argument as to how this is actually necessary to close the deal — perhaps because it’s not).

While Twitter does hand over a lot of information to Musk, the only attempt by Musk to prove the higher spam numbers is… to use Botometer.

The Musk Parties’ analysis processed accounts visible on the Firehose using the University of Indiana Botometer tool, which was initially developed with support from the DARPA program and has been improved and honed over the past eight years. The academic developers of the Botometer tool have published numerous articles about their work, including one seminal paper that has received over 1,000 citations in the academic literature. Defendants’ experts are continuing their analysis even now and, in anticipation of production of additional data by Twitter (including “private” data that Twitter makes available to its human reviewers and contends is necessary to verify its reported less-than5% spam and false user rate), intend to conduct a more comprehensive analysis and expect to present updated estimates and findings in expert reports and at trial.

Um. WTF? Really? There are a few services out there that claim they can tell if accounts are bots… and they’re fun to play with, but they’re all toys. They’re not accurate at all. And this point is really emphasized in Twitter’s reply when it notes that MUSK’S OWN ACCOUNT was recently deemed by Botometer to be a bot.

Musk’s “preliminary expert estimates” are nothing more than the output of running the wrong data through a generic web tool. The data are wrong because, as Musk knows, the “Firehose” from which the data were collected reflects many Twitter accounts that are not included in mDAU and, at the same time and as Musk admits in footnote 2, does not reflect the majority of those accounts that are included in mDAU because those accounts, though logged in, are not Tweeting or taking other actions. Confirming the unreliability of Musk’s conclusion, he relies on an internet application called the “Botometer”—which applies different standards than Twitter does and which earlier this year designated Musk himself as highly likely to be a bot.

Later, Twitter’s lawyers go further:

Insofar as Defendants rely on the Botometer for their analysis of spam, Twitter avers that the Botometer’s own FAQ website cautions that “Bot detection is a hard task” and that if it “were easy to do with software, there wouldn’t be any bots—Twitter would have already caught and banned them!” Twitter further avers that in May 2022, protocol.com reported that the Botometer indicated that Elon Musk’s own Twitter account was likely a bot, scoring it 4/5.

If you want to have some fun look over the discussion on Twitter between the guy who noticed that Botometer called Musk a bot and Botometer, in which it explains why it’s so difficult to algorithmically determine botness.

But, yeah, this image from Duke Professor Chris Bail is just… perfect:

Musk also doesn’t seem to understand some fairly basic things about internet business models. Okay, look, so Musk’s big success stories haven’t really been about the internet. Yes, you can argue that PayPal was, but it was more financial services, and Musk was apparently long gone from the company before it was actually a big success.

But, a big part of Musk’s filing focuses on the fact that there are a small number of super valuable Twitter accounts that make Twitter a lot of money. Then there is a decent chunk that makes Twitter a decent amount of money — and there are a bunch that don’t really make much money at all.

But, um, this is just how internet business models work. No one with any knowledge of any of this thinks that all users are equally valuable. Of course, you have some users who are much more valuable than others. That’s just common sense.

Yet there are pages upon pages of Musk and his lawyers insisting that this basic level of knowledge has been somehow hidden by Twitter, and that’s evidence of fraud or some such. It’s… just weird.

Musk’s own earlier filings undermine his latest counterclaims. Throughout the filing, beyond Musk’s (and his lawyers’) fundamental misunderstanding of what Twitter has reported to the SEC and how that impacts everything else, Musk keeps claiming that Twitter simply refused to explain to Musk the process that the company used to do that human audit of 9,000 random accounts every quarter. Over and over again the filing says that Twitter “refused” to provide the details of how those audits worked.

Indeed, over the weekend, Musk claimed that “if Twitter simply provides their method of sampling 100 accounts and how they’re confirmed to be real, the deal should proceed on original terms.”

Except, as Chancery Daily has pointed out, in Musk’s own filings, he filed a sealed exhibit, entitled “mDAU Auditing Guidelines (Confidential)” showing that Twitter already provided him with exactly what he’s claiming they never gave him. And he gave it to the court:

This is actually even worse than it seems. This sealed exhibit was included with Musk’s attempt to push back on Twitter’s motion to expedite the trial (which didn’t work). In that filing, the one citation to Exhibit 4 is… where Musk claims he was “stunned to discover” that Twitter’s process for spot checking how many spam accounts get through its automation didn’t use automation (again, he falsely characterizes this as how much spam is on the platform, even though, as explained above and elsewhere repeatedly, it’s not that).

But, while the full document remains sealed, it’s now clear that Twitter did, in fact, give Musk their guidelines for mDAU auditing. He may not like those guidelines. But in his counterclaims he argues that Twitter didn’t provide them. Yet, clearly the company did. And Musk already knows that, because he gave the court the document!

Anyway, the big takeaways from this are that Musk is still playing a game in which he’s trying to baffle the judge with bullshit. It may work for some of his fans, but the only person it actually matters for here is the judge: Chancellor Kathaleen McCormick. Chancellor McCormick has a reputation as a no-nonsense judge, and it would be surprising to see her taken in by all this.

Anyway, that’s all for now. As I noted, there are some other interesting things in the filings, but I think they require separate posts which I’ll hopefully write up eventually from a more comfortable chair.

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Comments on “Elon Musk Still Wants Everyone (Including The Judge) To Believe His Fight With Twitter Is About Spam. It’s Not”

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Anonymous Coward says:

And we have YET to touch the crazier claims, like “how dare Twitter hide Twitter’s legal troubles in India from ME”…

Despite it being in the FUCKING NEWS.

I am 100% convinced he’s being wilfully ignorant at this point, and I hope he fucking pays Twitter all the money he owes them. Plus interest.

Raziel says:


What’s worse is it’s not just Holiday Inn, it’s the company it belongs to, and they own a bunch of independent hotels as well. It makes it really hard to decide where to go on vacation because it can take a couple of hours of finding a hotel not belonging to HHM, then Googling its name along with phrase “light it up blue” to find somewhere that doesn’t join in with that hate group.

That One Guy (profile) says:

'Build me a house! No, without any tools or materials.'

Whether Musk really is this stupid and his legal arguments reflect that or his lawyers have realized that he has nothing for them to build a case on and they’re just flailing the result is the same: His legal case, and the case he’s presenting to the public is more and more showing itself to be just one huge gaslighting and lying campaign, and that is beyond pathetic for someone who is supposed to be so smart.

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Cameron says:


Never Trust mind reader’s.
9the author apparently is one) Does Elon have some thing up his sleave … Of course you fool.. I don’t find your arguments to be convincing any ways. First They lack depth. They proclaim what one would think is obvious.. Your saying that the richest man in the world hired such piss poor lawyers that their filing objections that are “oh so obviously frivolous?” .. Same crap was proclaimed about Johnny Depp till he smashed it in court… No one was predicting Elon was going to win the Solar city lawsuit .. he did .. Jeff Bezos has filed lawsuit after lawsuit against space X .. lost them all …. My Bet is on Musk buying twitter for pennies on the Dollar… Stop being so naïve ..

Rocky says:


Your saying that the richest man in the world hired such piss poor lawyers that their filing objections that are “oh so obviously frivolous?”

You don’t understand how this work, do you? A lawyer do what he can to represent a client, but in this case all the lawyer have, figuratively speaking, is a leaking bucket full of Musk’s shit which he tried to make out to be top class manure that smelled like roses.

My Bet is on Musk buying twitter for pennies on the Dollar… Stop being so naïve ..

Holy Jalapeño on a stick, the Musk fanbois are getting stupider by the minute and you have to be particularly stupid to squeeze the above abomination out.

The whole lawsuit is about making Musk hold up his end of the deal to buy Twitter for the agreed upon sum, regardless of the current share price of Twitter – and that will cost Musk billions.

Norm says:

Re: "Piss poor Lawyers"

the richest man in the world hired such piss poor lawyers that their filing objections that are “oh so obviously frivolous?

Well, they were poor enough to refer to “University of Indiana” instead of “Indiana University”.

I mean, it’s not like they left out a trademarked “THE” or anything, but still- did they go to Law School at Purdue?

This comment has been deemed insightful by the community.
Anonymous Coward says:

But, a big part of Musk’s filing focuses on the fact that there are a small number of super valuable Twitter accounts that make Twitter a lot of money. Then there is a decent chunk that makes Twitter a decent amount of money — and there are a bunch that don’t really make much money at all.

And now for the mindscrew. There is a chance that any of those moneymaking (for Twitter) accounts are bots.
Why? Twitter makes money from people reading tweets not posting them. And a bot that posts something that humans find worth their time reading/watching means a bot that lets Twitter serve adds to those humans reading/watching.

Anonymous Coward says:

Your saying that the richest man in the world hired such piss poor lawyers that their filing objections that are “oh so obviously frivolous?”

Even the best lawyers are forced to do their client’s bidding.

My Bet is on Musk buying twitter for pennies on the Dollar…

The SEC would have a field day with that, seeing as Elon already ran afoul of them before.

PaulT (profile) says:


“Even the best lawyers are forced to do their client’s bidding.”

Well, not really, they always have a choice, which is part of the reason Alex Jones burned through so many lawyers that he ended up with one so useless that they handed over 2 years of private data in a way that allows it to be disseminated to that court and others, which will be extremely valuable in prosecuting him and others in all sorts of other cases.

Money has a way of getting people to overcome certain moral qualms and possibly risk other types of punishment if they think the reward is big enough to do something clearly dumb or immoral, but it doesn’t necessarily mean that you guarantee an outcome. If Musk is throwing money at lawyers to file frivolous lawsuits, it doesn’t indicate incompetence if they go “well, I’ve told him he’s wasting his money, but if he insists…”. It only means you’re less likely to get someone who hasn’t already proven himself in his field.

“The SEC would have a field day with that, seeing as Elon already ran afoul of them before.”

There’s already lawsuits against him, I believe both from Twitter and Tesla shareholders over how he’s been doing things. There’s likely to be a lot of pushback unless he suddenly agrees to the originally agreed price (and likely not even that, since he’d have to pay for it by selling Tesla stock, which will cause its price to drop).

Whatever the outcome, I doubt we’ll see the end of the lawsuits for a number of years, while the hare-brained schemes he seems to be planning would kill future business in many ways.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re:

Alex Jones burned through so many lawyers that he ended up with one so useless that they handed over 2 years of private data in a way that allows it to be disseminated to that court and others

Wanna know the grand irony of that fuck-up? Jones and any of his other lawyers could’ve handed over his texts to the court at any point before last week. That he didn’t means all the texts sent to the lawyer for that Sandy Hook family now includes every text from (and to) his phone that relates to the 2021 insurrection. The feds could end up charging him with go-directly-to-jail crimes based on those texts⁠—which they might not have ever seen if Jones had simply handed over his text messages to the court as soon as possible.

Self-owns of this variety don’t come along every day. Making one of them requires a special combination of hubris, paranoia, and ignorance (willful or otherwise). I, for one, will be enjoying the schadenfreude for as long as I can.

This comment has been deemed insightful by the community.
Tanner Andrews (profile) says:

Re: client is the captain of the ship

Even the best lawyers are forced to do their client’s bidding.

Not exactly. Yes, the client is the one who makes the strategic decisions. most notably whether we settle or litigate. We say that the client is the captain of their own ship. So, in that, you are right.

However, a lawyer may be obligated to separate himself from the case, or attempt to do so, if there is an ethical problem. If the client turns out to be a Charles Harder type, for instance, an attorney may be required to tell the client to dismiss the case or find a new lawyer. Alternatively, to settle the case or find a new lawyer. Mr. Musk may wind up in such a position.

Tactical decisions are generally up to the lawyer. These things include witness selection and ordering, trial preparation, and the like. The navigator advisess the captain how to get the ship to the intended port and how to avoid known obstacles.

There are also times when an atty cannot obey client wishes. Discovery compliance, of recent Alex Jones fame, may not be discretionary. If the court orders the atty to not discuss the case publicly, the atty may have to appeal but cannot simply follow client direction to issue a press release. An atty should not help a client to steal. Generally speaking, anything which runs afoul of ethics rules is not subject to a client’s bidding.

There are attorneys who are more flexible about these things.

Keroberos (profile) says:

Being Smart Isn't a Requirement.

I’ve never met the man, but the few times I’ve suffered through hearing him speak, I’ve never been struck with the idea that he was particularly smart. Intelligent, yes, in a precocious toddler sort of way, but not smart. Most of the things he’s thought up seem like the daydream of a five-year old, intriguing, but vague, missing any of the complexities and a realistic view of the technical difficulties that a well thought out idea requires to bring to fruition. But in his line of work, his ideas don’t need to be smart in a technical sense (or even particularly useful), they just need to be profitable.

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restless94110 says:

The Eon Musk Club

I don’t know who made you President of The Hate Elon Musk Fan Club, but you are doing a fine job.

Trouble is you forgot something: anyone who is for free speech is worthy of your support. Else you aren’t for Free Speech. What a great stance for an American to take: I hate Elon Musk so who cares about Free Speech?

You go, boy. Keep typing your nit-picky nonsense that no one reads (we don’t read the anti-Free Speechers, they have nothing to say about anything).

Stephen T. Stone (profile) says:


anyone who is for free speech is worthy of your support

Anyone can say they’re “for free speech”. Knowing whether they’re in favor of protecting the rights of everyone to speak their mind is how you separate the posers from the real defenders of those rights. I don’t have to support posers⁠—and you haven’t offered a good reason why I should.

I hate Elon Musk so who cares about Free Speech?

Can you point to any part of this article, or any other article on Techdirt, where that explicit point is made? If not: What makes you think that point has ever been made on this site?

Keep typing your nit-picky nonsense that no one reads

And yet, here you are. (A page hit is a page hit no matter why you chose to visit this page, you know.)

Anonymous Coward says:


So basically, you want to act like a genocidal asshole, murdering minorities and taking away all that they own because they aren’t white.

You do realize that Elon is a White South African who grew up and profitted from apartheid in South Africa? At least, until he “decided” that it was not for him.

Maybe that’s why you worship him.

Lostinlodos (profile) says:

I’m still lost

I have yet to figure out why Musk wanted a social media site in the first place.
Nor what he intended to do with it.

Maybe in truth he just figured out he didn’t know why he wanted it in the first place and decided to find a way out.

I have a hard time rationalising a debate about spam accounts when the very foundation founding of the service involves sending users unsolicited advertising.

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