from the musk-is-more-of-a-slappist-than-a-free-speech-absolutist dept
There’s so much to dig into on this one. First off, just to state my own bias upfront, I’m not a fan of the Center for Countering Digital Hate (CCDH). Literally just a few days ago I wrote about one of its highly questionable studies and how it’s being used (badly) to justify a terrible bill in California. Beyond that, I think that the organization has a history of publishing overhyped reports that the media (and some politicians) love, but which do not accurately reflect reality.
So, when CCDH produced a report recently claiming that there was a surge in hateful content on ExTwitter, I didn’t cover it, because I don’t trust the group’s methodology to be sound, even if it is likely true that ExTwitter has enabled more hateful content. It also wasn’t that surprising or newsworthy when Linda Yaccarino, CEO of ExTwitter, hit back at the report, claiming it was wrong and that the company was successfully suppressing hateful speech using its visibility filtering tools (side note: this is somewhat ironic, given how people still insist that Elon took over Twitter to get rid of “shadowbanning,” when he’s not just doubled down on visibility filtering, but strongly advocates for it).
But then things blew up in the last few days. It came out on Monday that ExTwitter had sent a pompous, over-the-top, nonsensical threat letter to CCDH from Elon Musk’s personal attack dog, Alex Spiro. Even as much as I disagree with CCDH and their methodology, the letter from Spiro is laughable in its vexatious nonsense:
I write on behalf of my client X Corp., which operates the Twitter platform. It has come to our attention that you and your organization, the Center for Countering Digital Hate, (“CCDH”), have made a series of troubling and baseless claims that appear calculated to harm Twitter generally, and its digital advertising business specifically. CCDH regularly posts articles making inflammatory, outrageous, and false or misleading assertions about Twitter and its operations, which CCDH holds out to the general public as supported by “research.” CCDH fixes this label on its outlandish conclusions about Twitter despite failing to conduct (or even attempt) anything resembling the rigorous design process, analytical procedures, or peer review that a reasonable person would expect to accompany research product published by any reputable organization.
Spiro calls out CCDH’s questionable methodology, which (again) I agree is poor. But poor research methodology does not violate the law, and sending a threatening letter over it seems like a clear SLAPP situation. Spiro’s letter implies a defamation claim:
CCDH’s claims in this article are false, misleading, or both, and they are not supported by anything that could credibly be called research. The article provides no methodology for its selection or testing of tweets, no baseline for Twitter’s enforcement time frame, and no explanation as to why the 100 chosen tweets represent an appropriate sample of the nearly 500 million tweets sent per day from which to generalize about the platform’s content moderation practices. And despite purporting to conclude that Twitter favors Twitter Blue subscribers by allowing them to “break its rules with impunity,” the article provides no evidence of differing treatment in content moderation actions against Twitter Blue subscribers and non-subscribers, and indeed reflects no effort to conduct any testing to support this claim, which appears under its headline. The article cites no sources other than different, similarly threadbare posts on CCDH’s own website, and fails to identify the qualifications of any of the researchers who worked on the article.4 In other words, the article is little more than a series of inflammatory, misleading, and unsupported claims based on a cursory review of random tweets.
Even more bizarrely, it suggests there’s a “false designation of origin” claim under the Lanham Act. Which makes zero sense and just seems like flinging shit at the wall.
CCDH’s lawyers hit back on Monday, explaining why this was all nonsense:
We write in response to the ridiculous letter you sent our clients on behalf of X Corp., which operates the Twitter (or the new “X”) platform, dated July 20, 2023. (A copy of your July 20 letter is attached.) In that letter, you claim that CCDH has supposedly made “inflammatory, outrageous, and false or misleading assertions about Twitter” and suggest it has engaged in some sort of conspiracy “to drive advertisers off Twitter by smearing the company and its owner.” These allegations not only have no basis in fact (your letter states none), but they represent a disturbing effort to intimidate those who have the courage to advocate against incitement, hate speech and harmful content online, to conduct research and analysis regarding the drivers of such disinformation, and to publicly release the findings of that research, even when the findings may be critical of certain platforms
As you know, CCDH recently published an article concerning the proliferation of hate speech on Twitter and the company’s failure to address it. That article involved CCDH’s review of 100 hateful tweets that contained racist, homophobic, neo-Nazi, antisemitic, or conspiracy content—i.e., content that plainly violates Twitter’s own policies in this regard. One tweet, for example, stated that “black culture has done more damage [than] the [Ku Klux] [K]lan ever did.” Another referenced the white supremacist ideology known as “replacement theory,” claiming that “[t]he Jewish Mafia wants to replace us all with brown people.” And yet another explicitly encouraged violence against the LGBTQ+ community, suggesting that LGBTQ+ rights activists need “IRON IN THEIR DIET. Preferably from a #AFiringSquad.” CCDH staff reported all 100 tweets using Twitter’s own designated reporting tool. Four days later, 99 of the 100 tweets identified by CCDH remained available on Twitter.
Tellingly, after CCDH published this article, Twitter did not spend its time and resources addressing the hate and disinformation that CCDH had identified, despite Twitter’s purported commitment to addressing hate speech on its platform. Instead, your clients decided to “shoot the messenger” by attempting to intimidate CCDH and Mr. Ahmed. In your July 20 letter, for example, you write that “CCDH’s claims in [its report] are false, misleading, or both”—although you point to no actual inaccuracy—“and they are not supported by anything that could credibly be called research”—although the article describes the basis for its conclusions and the methodology it used. While it is true that CCDH did not undertake a review of the “500 million tweets” that you claim are posted on Twitter each day, CCDH never claimed to have done so. In fact, under Mr. Musk’s leadership, Twitter has taken steps to curtail research on the platform. To criticize CCDH for being too limited in its research while simultaneously taking steps to close the platform off to independent research and analysis is the very height of hypocrisy.
The response letter also took on the ridiculous suggestion of a Lanham Act claim:
But your July 20 letter doesn’t stop there. You go on to state that there is “no doubt that CCDH intends to harm Twitter’s business” and warn that you are “investigating” whether CCDH has violated Section 43(a) of the Lanham Act. That threat is bogus and you know it. None of the examples cited in your letter constitutes the kind of advertisement or commercial speech that would trigger the Lanham Act. To the contrary, the statements you complain about constitute political, journalistic, and research work on matters of significant public concern, which obviously are not constrained by the Lanham Act in any way. Moreover, as a nonprofit working to stop online hate, CCDH is obviously not in competition with Twitter, which makes your allegations of a Lanham Act injury even more fanciful. Your assertion that the goal in CCDH’s research and reporting is to benefit Twitter’s competitors also ignores the fact that CCDH has published critical, highly-publicized reports about other platforms, including Instagram, Facebook, and TikTok. Simply put, there is no bona fide legal grievance here. Your effort to wield that threat anyway, on a law firm’s letterhead, is a transparent attempt to silence honest criticism. Obviously, such conduct could hardly be more inconsistent with the commitment to free speech purportedly held by Twitter’s current leadership.
I mean, all of this is nonsense. Spiro’s threat letter was clearly a ridiculous (and poorly argued) intimidation tactic. And it’s doubly hilarious that it claims CCDH’s methodology doesn’t count because the sample size is too small, when Musk’s entire faked reason for trying to get out of the Twitter deal was too much spam, based on a similarly misleading sample size.
But, more to the point, Elon has pretended all along to be a supporter of free speech. Many of us have pointed out what a ridiculously false statement that is, and Musk has a long history of suppressing and attacking critics.
Anyway… around the same time that CCDH was sending this letter, ExTwitter and Musk were (stupidly) filing an actual lawsuit against CCDH. The case is clearly a SLAPP suit, but (oddly) ExTwitter is not represented by Spiro or his firm Quinn Emanuel. Nor does it make any of the claims suggested in the letter (defamation or a Lanham Act claim).
Instead, the lawsuit is even dumber. Filed by the law firm of White & Case (which is big enough to know better than to file vexatious SLAPP suits) the claims are breach of contract (?!?) and a CFAA violation for hacking the site. Then there are the usual throw-in claims of “intentional interference” and an “inducing breach of contract.”
The claims are ridiculous, but they are a strong reminder that SLAPP suits come in many forms, and don’t just need to be about defamation. Of course, having this actual lawsuit preceded by Spiro’s weak-ass attempt at intimidation, which strongly implies defamation, only helps to prove that the actual nonsense claims here are pure SLAPPs and a direct attack on free speech by someone who cosplays online as a “free speech absolutist.”
Let’s do a quick explanation for why these claims are frivolous:
CCDH intentionally and unlawfully accessed data it sought regarding the X platform in two ways. CCDH US, as a registered user of X, scraped data from X’s platform in violation of the express terms of its agreement with X Corp. CCDH also convinced an unknown third party — in violation of that third party’s contractual obligations — to improperly share login credentials to a secured database that CCDH then accessed, and retrieved information from, on multiple occasions without authorization. CCDH, in turn, selectively quoted data it obtained via those methods. It did so out of context in public reports and articles it prepared to make it appear as if X is overwhelmed by harmful content, and then used that contrived narrative to call for companies to stop advertising on X.
The specifics here are that ExTwitter is claiming someone gave CCDH access to ExTwitter’s account with Brandwatch. Brandwatch has a tool for advertisers to monitor their brands on social media. Twitter has an ongoing relationship with Brandwatch (likely using the Twitter API) to help customers of Brandwatch (generally advertisers) see what’s happening on social media.
ExTwitter claims that someone with a Brandwatch account gave CCDH access to their dashboard:
Twitter is informed and believes, and on that basis alleges, that none of the Defendants (except for the third party who is included as Doe Defendant and improperly shared its login credentials with CCDH) are or ever have been customers of Brandwatch, and have never been provided with login credentials that would enable them to permissibly access the data with authorization. None of the Defendants (again, except for the third party who improperly shared its login credentials with CCDH) are or ever have been parties to the Brandwatch Agreements. And neither X nor Brandwatch has ever consented, in any form or in any way, to any of Defendants (except the third party who provided CCDH with its login credentials and who is named as a Doe Defendant) the data that X Corp. provided to Brandwatch under the Brandwatch Agreements.
In order to prepare and publish the so-called “research” reports and articles about X, CCDH has — since at least March 2011 — necessarily obtained access to and accessed the Licensed Materials improperly and without authorization. Indeed, CCDH has admitted as much, citing Brandwatch—a platform it never had any right to access—as a source of its data in its “research” reports, despite that data being accessible only to authorized users via login credentials, which the CCDH was not. These actions were unknown to Brandwatch and to X until recently
Even if true, this is no basis for ExTwitter to sue CCDH. It might (in theory, but probably not in reality) have a claim against Brandwatch or the Brandwatch user. Or, more likely, Brandwatch might have a claim against its users for breaching its contract. But there’s no transitive property that gives ExTwitter a legitimate claim against CCDH.
This is all just fluff and nonsense.
There’s also this:
Twitter is informed and believes, and on that basis alleges, that CCDH’s conduct as described herein is intended to do more than further CCDH’s own censorship efforts.
Again, I disagree with CCDH’s methodology and its goals. I think it’s a terrible organization that gets way too much attention for its shoddy research and biased takes. But what is described above is literally the quintessential definition of free speech. CCDH cannot meaningfully “censor” anything. The only thing it can do is use its own free speech rights to try to convince others to disassociate from someone.
That’s free speech. That’s the marketplace of ideas.
I can disagree with CCDH’s position and its research and arguments, and still recognize that it has every right to advocate for whatever it wants to advocate for. That’s not censorship, Elon, that’s free speech.
So, the breach of contract claims are a total joke. It’s not the contract between ExTwitter and CCDH that was broken. And the CFAA claims are even more disgusting. We’ve obviously written about the horror that is the CFAA many times before. The Computer Fraud and Abuse Act, passed because Ronald Reagan was confused and thought the movie War Games was true, has been widely abused for years by companies (and law enforcement) using bogus claims of “unauthorized access” to attack people who do things on their computers that they just don’t like. The broad nature of the law has lead to it being called “the law that sticks” because it’s often used when all other laws would fail.
Thankfully, over the past few years, the courts have pushed back on the most egregious uses of the CFAA, but it’s still a bad law. And here, the CFAA claims are particularly laughable:
Defendants, except for the third party who provided CCDH with its login credentials, have violated the CFAA by knowingly, and with intent to defraud X Corp., accessing a protected computer, without authorization, and by means of such conduct furthered the fraud and obtained one or more things of value
Bullshit. Again, this claim only makes (very slightly, but not really) sense if it were Brandwatch making it, not ExTwitter. The complaint makes it clear that the computer systems in question were Brandwatch’s, not ExTwitter’s:
Defendants (except for the third party who is included as a Doe Defendant and improperly shared its login credentials with CCDH) were never validly given login credentials to access the data provided under the Brandwatch Agreements. Those Defendants nonetheless, knowing the data was secured pursuant to the Brandwatch Agreements and that those Defendants did not have authorization to access it, convinced an unknown third party, who is likely a Brandwatch customer, to share its login credentials with the remaining Defendants. Those Defendants then accessed that data without authorization, as admitted in CCDH’s reports and articles discussed above, in furtherance of obtaining data regarding X that those Defendants could mischaracterize as part of its campaign to call on companies to stop advertising on X.
And the “loss” part, which is a necessary part of a CFAA claim, is particularly ridiculous even by CFAA standards, in which “losses” are often quite absurd.
X has suffered loss as a result of these violations, including, without limitation, amounts expended attempting to conduct internal investigations in efforts to ascertain the nature and scope of CCDH’s unauthorized access to the data, significant employee resources and time to participate and assist in those investigations, and attorneys’ fees in aid of those investigations and in enforcing the relevant agreements. These losses amount to well over $5,000 aggregated over a one-year period
Yes. That’s right. Elon is claiming that the “loss” under the CFAA is the fact that ExTwitter employees had to investigate how it was that CCDH was getting the information it used to make fun of Twitter.
This is all hogwash. No matter what you think of CCDH, it has every right to analyze Twitter and post its own interpretation of how well the company is handling hateful content, just as I (or Musk) have the right to respond and point out the problems with their opinions or analysis.
That is free speech.
What is not free speech is using the power of the state to file vexatious, bogus lawsuits to try to intimidate them for their speech. The fact that the case filed has entirely different (but equally ridiculous) legal theories than the letter that preceded it really only serves to underline that the intent of this was to find the best way to intimidate critics. The lawyer filing this case, Jonathan Hawk, is an experienced lawyer working for a giant law firm. He must know that this case is a vexatious, nonsense SLAPP suit, but he still agreed to file it. It’s disgusting.
While California has an anti-SLAPP law, as some have noted, this case may not be applicable to it. The CFAA claim is a federal claim, and California’s anti-SLAPP law (while it can be used in federal court) can’t be used against federal law (this is why we NEED A FEDERAL ANTI-SLAPP law). And, while the breach of contract claim might be arguable under California’s anti-SLAPP, ExTwitter can and will argue it’s not really about speech… In other words, this is still going to be a pain for CCDH. (Edited to provide a clearer explanation of the anti-SLAPP issue…).
I asked 1st Amendment Ken White to dig into the California anti-SLAPP analysis, and he explained why it (unfortunately) likely won’t apply here:
When evaluating an anti-SLAPP motion, California courts look to the legal nature of the claim, not the plaintiff’s intent in bringing it. A case that the plaintiff filed because of protected activity, or in retaliation against protected activity, doesn’t come under the statute unless the legal claims are based on protected activity. This is sometimes called the “gravamen” test. So, for instance, if a landlord sues to evict you and cites your non-payment of rent, even if you claim that the real motive is your organizing tenants to protest the landlord, the anti-SLAPP statute doesn’t apply because the gravamen of the claim – the thrust of the claim – isn’t your protected speech. Here, the defendant can’t use the anti-SLAPP statute to attack the CFAA claim because it’s a federal cause of action. In addition, I think it’s going to be tricky showing that the gravamen of the other claims is the speech as opposed to breach of the contract regarding access to the data. It’s not a sure loss, but it’s a problem.
And, again, this is why we really need a strong federal anti-SLAPP law to deal with situations like this.
But, let’s be 100% clear about this: Elon Musk is not a free speech absolutist or a free speech supporter. He’s a thin-skinned free speech suppressor willing to file vexatious SLAPP suits to intimidate those who criticize him.