Is Twitter using the health emergency to settle political scores?

Episode 310 of the Cyberlaw Podcast

|The Volokh Conspiracy |

Nate Jones and I dig deep into Twitter's decision to delete Rudy Giuliani's tweet (quoting Charlie Kirk of Turning Point) to the effect that hydroxychloroquine had been shown to be 100% effective against the coronavirus and that Gov. Whitmer (D-MI) had threatened doctors prescribing it out of anti-Trump animus. Twitter claimed that it was deleting tweets that "go directly against guidance from authoritative sources" and separately implied that the tweet was an improper attack on Gov. Whitmer.

I call BS. Hydroxychloroquine has looked very effective in several tests in France and China, but it hasn't passed any controlled trials, and along with all the other promising drugs, it won't pass those trials until the wave of death has begun to recede. In a world of bad choices, the drug looks like one of a few worthwhile gambles, as even Gov. Whitmer recognized by reversing course and asking to be allocated a lot of doses. Giuliani was closer to right than Whitmer. But Twitter decided that Giuliani's view was so far from the mainstream that it had to be suppressed.

To be clear, Twitter management decided to suppress a legitimate if overstated view about how to survive the coronavirus. Twitter readers would not be allowed to see that view. That's a stance that requires some serious justification.

Twitter invoked "authoritative guidance" and claimed that Giuliani was "going directly against" it. Exactly what guidance was that? Twitter isn't saying, probably because can't find authoritative guidance contradicting most of what Giuliani said. I offered two Twitter representatives a chance to make their case on the podcast, but they didn't respond.

So why did Twitter think its censorship was justified? My guess is that Twitter just couldn't get out of a media bubble that saw President Trump's enthusiasm for the drug as a dangerous snake oil sales pitch. That view may have been common in Silicont Valley, but it was more antiTrump spin than a serious public health position. Unfortunately, Twitter could not tell the difference.

In short, all the people who've been telling us that our freedoms are at risk because of precedents set in this health emergency might be right, but the source of the danger isn't government. It's Silicon Valley.

Nate could hardly disagree more. He thinks (probably correctly) that Kirk and Giuliani were wrong about the "100% effective" claim, and that people like them and the president are acting irresponsibly by encouraging people to take dangerous drugs without medical advice. Let's just say that we have a spirited exchange.

In contrast, Paul Rosenzweig and I find a fair amount of common ground in leaning against this week's media consensus that Zoom is evil or stupid, and maybe both, for its handling of the privacy and security of users. No doubt there are a staggering number of privacy and security holes in the product, and the company will get sued for several of them. But we suspect that many of the problems would have been exposed and fixed over the course of the three years it would have taken Zoom to reach the levels of use it's instead reached in three weeks. One error, exposing LinkedIn data to unrelated users with the same Internet domain, seems to have hit Dutch users especially hard.

The DOJ inspector general has found widespread gaps in the FBI's compliance with its now-famous Woods procedures. Matthew Heiman and I try to put the damaging report in perspective. It's hard to know at this point how serious the gaps are, though the numbers suggest that some will be very troubling. Meanwhile, the FISA court has ordered a rush evaluation from Justice of more or less exactly the same questions the IG is examining. We also agree that the court's June 15 deadline is not realistic given everything else the same group of Justice lawyers and agents will be doing between now and November.

Matthew tells us that the Saudis are suspected of a phone spying campaign in the United States. I point out that foreign location collection is pretty much built into the SS7 phone system, so the worst that can be said about the event is that the Saudis were caught doing "too much" spying in the US.

Paul agrees with a new court ruling that violating a site's terms of service isn't criminal hacking. And now that that's settled, I have a research proposal for the Hewlett Foundation. Think the content moderation debate is all anecdote and no data? There's one way to solve that problem:  Create hundreds of fake Twitter and Facebook accounts and A/B test the content moderators. (After all, they've been A/B testing us for a decade or more.)

Washington State has adopted a facial recognition law that Microsoft likes, Nate tells us. No surprise, I suggest, since the law will only regulate governments, not the private sector. I'm not a fan; it looks like a law that virtually guarantees that any facial recognition system will be forced to "correct" empirical results by installing quotas for "protected subpopulations." This leads, in light of Zoom's problems, to the question whether that includes the Dutch.

Who is hacking the WHO? Who isn't? Other than WHO itself. WHO is evidently still on first (h/t Abbot and Costello). Matthew notes that Iran has joined what must be a crowd of eavesdroppers in WHO networks.

Nostalgic for the days before the coronavirus? How about this blast from the past: Marriott has revealed a data breach exposing (some) personal data for up to 5.2 million customers.

I close the episode with the good news that some coders seem to be taking up the challenge I offered in the last episode and on Lawfare to construct an infection tracing system using mobile phones that will work in the US.

Download the 310th Episode (mp3).

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  1. “The DOJ inspector general has found widespread gaps in the FBI’s compliance with its now-famous Woods procedures.”

    You could have knocked me over with a feather.

  2. Twitter delenda est.

    1. ABSOLUTELY — there needs to be a Sherman Act suit against both them and Farcebook.

      1. You feel these companies are extracting excessive fees for the use of their services due to the lack of sufficiently viable alternatives? Did you ask them for a refund?

  3. Whining clingers are among my favorite contributors to faux libertarian blogs.

  4. “I offered two Twitter representatives a chance to make their case on the podcast, but they didn’t respond.”

    Did you object when the Volokh Conspiracy censored me — at least three times I recall, for offenses ranging from making fun of conservatives to a ribald pun — Mr. Baker? If not, why not? Do you condemn that censorship now? Can you distinguish it from that for which you condemn Twitter? Here is your chance to ‘make your case’ that your observations on censorship derive from principles applied consistently (rather than from the paltry partisanship so often exhibited by political blogs).

    1. Was the censorship over insults directed towards Baker, or is there some other reason to believe that he has been made aware of the censorship or had a hand in it? I’m just trying to determine if I’m missing some context, as I don’t get the impression that Baker is very active with VC or its operations, other than to post a description and link when he drops a new podcast episode.

      1. No insults directed toward Baker — it was Artie Ray Lee Wayne Jim-Bob Kirkland stating conservative views in a strident manner; the Rev. Arthur Kirkland using the term “cop succor” to describe any person who provides or exhibits intense fealty to police officers (customarily when officers are afflicting citizens in an authoritarian manner); and Rev. Kirkland using the term “slack-jaw” to describe persons commonly recognized as slack-jaws.

        Artie Ray was banned. The term ‘cop succor’ was removed more than once and I was instructed not to use it. “Slack-jaw” involved a written warning.

        My inquiry is whether Mr. Baker objects to those circumstances involving this blog, or distinguishes them from the circumstances involving Twitter that he uses this blog to criticize.

        He provided a chance to respond to Twitter, then publicized that opportunity; I am trying to do the same.

        (To the extent anyone cares, I believe Prof. Volokh is entitled to ban commenters; to remove or redact comments; and to warn people not to use any words or to advance any views he disfavors at his blog. I also believe Twitter is entitled to the same privileges. It strikes me as odd, and worthy of comment, that this blog engages in viewpoint-based censorship while criticizing it elsewhere.)

        1. “(To the extent anyone cares, I believe…”

          No one cares to any extent what you believe, because all you do here is make an ass of yourself. You’re not clever; you’re not funny; I’ve never seen you add anything to any conversation, ever. You’re a garden-variety Internet troll, and a below-average one at that.

          Wait, actually one thing about your schtick *is* funny: your delusions of superiority. My best guess is you were a middle class kid who had the good fortune to go to Hotchkiss and Amherst on full financial aid packages and now think you’re an elite by proxy, even though nobody ever invited you out to their place in the Hamptons over the summer.

          1. (1) Do you speak for all movement conservatives consequent to a recorded vote, a voice vote, or just a sense of entitlement to act as spokesman for Republicans, right-wingers, and faux libertarians?

            (2) Your selective appetite for hypocritical, partisan, viewpoint-controlled censorship is noted and disdained.

            (3) The way you feel about me here — seeing me as an objectionable interloper — resembles the way most faculty members at legitimate law schools tend to see most stridently right-wing faculty members, such as the majority of the Conspirators.

            You guys get to huddle for warmth at this blog — temporarily feeling “normal” and empowered in the manner of a lathered-up Ron Paul campaign rally crowd convinced it was about to be introduced to ‘the next President of the United States of America . . . Ron Paul!’ — which is nice for you because everyone likes camaraderie and a respite from reality, but it won’t change the course of American progress or the culture war.

        2. “(To the extent anyone cares, I believe Prof. Volokh is entitled to ban commenters; to remove or redact comments; and to warn people not to use any words or to advance any views he disfavors at his blog.”

          Redaction does not belong on this list. It is, strictly speaking, a misquote and it is copyright violation to misquote someone. But declining to carry ANY of your words if some of them are objectionable to the site owner is peachy-keen.

    2. Did you object when the Volokh Conspiracy censored me — at least three times I recall, for offenses ranging from making fun of conservatives to a ribald pun

      Not a fan or blocking posts (spam aside) because the response to speech should be more speech. Which also covers the twitter posts in question.

      1. I agree. It is unseemly for a blog that repeatedly engages in viewpoint-controlled censorship to snipe at others for engaging in (ostensibly) viewpoint-controlled censorship. But some people seem to figure all’s fair in a culture war.

      2. “the response to speech should be more speech.”

        The problem occurs when at least one of the would-be speakers wants to use someone else’s property to make their speech. Say, for example, broadcast campaign ads. Since all use of Twitter involves using someone else’s property to distribute your message, it’s all problem.

  5. Happened to be having my afternoon coffee in my Cyberlaw Podcast mug right now. Thanks for the reminder about a new episode; since I no longer commute to work during the current lockdown, my podcast listening has decreased dramatically (I was a podcast-in-the-car kind of listener).

    For others who haven’t checked it out, I highly recommend it (especially the episodes with non-lawyer Nick Weaver of U.C. Berkeley). Baker is definitely conservative and generally in favor of government intelligence/surveillance operations, but he is also very free in having cohosts or guests who typically disagree with him. So you get a good mix of opinions, and some spirited (but not mean-spirited) disagreements and debate.

    But as always, the audience cries out for more Weaver!

    1. I am generally in favor of governments using whatever information they have or can get to address issues of public concern. People who object to government surveillance of themselves should take more steps to prevent or preclude it.

  6. Twitter’s actions are clearly being done for political reasons, not for public health reasons. Trump or Giuliani or anybody for that matter could suggest medications they think will work, but if these meds require a prescription, the public is not harmed. Only their doctor can prescribe the medication, and by doing so the doctor would be making a decision that the particular medication in question might alleviate or cure her patient’s illness or condition. It isn’t as of Trump or Giuliani are encouraging folk to ignore their doctors and purchase some OTC product.

    1. All of the sex-change hormones are also being prescribed “off-label” — I somehow don’t think Twatter is opposed to that….

    2. Clearly.

      No one can get drugs without a prescription, or pressure their doctor for a scrip!

      1. Absolutely. We must protect the public from aquarium cleaner and weak-kneed pill pushers.

        1. Go to a seminar on college student suicide and you would be amazed at the number of different things that those so incline have ingested, not all of which are anywhere near fatal (although the damage they can do to the body is extensive).

          I’m thinking of two very common products that I don’t think I should name — but which would be instantly recognizable to all if I did — which most people reading this have used as directed.

          Anything which says “keep out of the reach of children” likely does so for a good reason — and how much babysitting do we want to tolerate?

          1. I’m pretty sure one of your two very common products is Tide pods, but I can’t get a bead on what the other one is. Vodka, maybe.
            I currently have an offspring unit who is a graduate student.

    3. ” if these meds require a prescription, the public is not harmed”

      Propofol requires a prescription, so Michael Jackson was not harmed by it.

      May I suggest you Google “opioid crisis”?

  7. “In short, all the people who’ve been telling us that our freedoms are at risk because of precedents set in this health emergency might be right, but the source of the danger isn’t government. It’s Silicon Valley.”

    That’s absurd. Twitter is doing what Twitter has been doing for years, regardless of what excuse they’re presently using to do it. Twitter is _not_ deliberately destroying the economy. They don’t have that power.

    1. Can’t they both be right?

  8. Twitter is a private publisher. It can exclude any content it wants to exclude, for any reason, or for no reason. If you say you back freedom of the press, you need to back that.

    But there is something wrong with internet publishing, including Twitter. At least two things wrong, actually. First, mostly no editing. Things get published all the time, without anyone reading them first. That means every fraud, every election-fixing troll attempt, every irresponsible health claim, and every defamation, all of them, get published and do their damage before anyone can act to prevent it. That is a new thing in the world of publishing, which used to control those kinds of problems using private editing.

    Second, internet business models have drastically undermined publishing diversity, and concentrated publishing power in too few hands. There are simply too few publishers left in the nation, so irresponsibility by any of the near-monopolists which are left hurts more. That is very bad, because it creates tension between protecting press freedom to decide what to publish, and a need to provide diverse information sources which together provide alternative outlets for a broad range of views.

    1. I don’t back monopolies..

      1. It’s painfully apparent that you don’t know anything about the law, yet perpetually traffic in legal-sounding terms and theories.

        1. Like argumentum ad verecundiam? 🙂

          And I don’t much care what the law (currently) says — I’m making a political, not legal, statement here — I’m saying what our law should be, and what a Congress controlled by Populist Republicans (as it will be next year) should make it to be….

          “Monopoly” has a commonly understood meaning in the English language.

          1. “I’m making a political, not legal, statement here…”

            So when you said “…there needs to be a Sherman Act suit against both them and Farcebook…” you weren’t talking about a specific law?

            ““Monopoly” has a commonly understood meaning in the English language.”

            Twitter is not a legal monopoly. It isn’t a monopoly according to any dictionary definition, either. Just because you have some idiosyncratic idea of what a “monopoly” is doesn’t mean your idea is “commonly understood”.

            1. Lawsuits aren’t political?

              1. Not necessarily.

          2. “Monopoly” has a commonly understood meaning in the English language.

            It does, but apparently not what you think it is, and in any case it’s also a trademark indicating a product of Parker Brothers. Twitter is not a product of Parker Brothers.

    2. Twitter will deny that they are a publisher. That is the kernel of the dispute.
      It cannot exclude content for any reason. If it starts to block all posts about blacks, there would be an explosion of litigation and legislation. Even as a corporate citizen, they are bound by laws and those posted about are protected (in theory) by the US Constitution.
      The issue is that not EVERY fraud, troll, or election-fixing (really?) post is published, some are not, and there is a clear pattern of discrimination.

      1. “If it starts to block all posts about blacks, there would be an explosion of litigation and legislation.”

        Why?

        “Even as a corporate citizen, they are bound by laws and those posted about are protected (in theory) by the US Constitution.”

        What provision in the Constitution protects black people from Twitter? Or Stormfront, for that matter? If I start a website committed to spreading white supremacy, and I ban the content of people who disagree with white supremacy, who is going to sue me, and on what theory?

        1. ” If I start a website committed to spreading white supremacy, and I ban the content of people who disagree with white supremacy, who is going to sue me, and on what theory?

          Your web hosting provider is going to sue you, for breach of contract, because their terms of service included a clause where you promised not to put objectionable material (specifically including white supremacy) on their servers.

      2. Are they — or will they be defined to be — a “common carrier” not unlike the Bell System once was.

        And then why was the Bell System broken up?

        1. “why was the Bell System broken up?”

          To provide a vital service to Americans at lower cost.
          Twitter is no vital service, and can’t be provided at lower cost.

      3. “Twitter will deny that they are a publisher. That is the kernel of the dispute.”

        Twitter doesn’t have to care whether or not they are a publisher, thanks to the Communications Decency Act.

        “It cannot exclude content for any reason.”
        It sure as hell can. They don’t even have to have a reason, or explain what the reason is, if they don’t want to.

        ” there is a clear pattern of discrimination.”

        So fucking what? If you don’t like the way they run their service, but up some servers and routers and build your own service and run it the way you prefer.

    3. “Twitter is a private publisher. It can exclude any content it wants to exclude, for any reason, or for no reason. If you say you back freedom of the press, you need to back that.”

      It’s got nothing to do with freedom of the press. It’s about Twhat ownership of property means. Twitter owns the compuers and other other equipment, so they get to decide who uses it and for what. If you don’t like the rules they set (and enforce), you’re free to buy some servers and connect them to the Internet and build and operate your own service on whatever terms you’d prefer.

    4. ” internet business models have drastically undermined publishing diversity, and concentrated publishing power in too few hands. There are simply too few publishers left in the nation, so irresponsibility by any of the near-monopolists which are left hurts more. That is very bad”

      The conflict between your first and second complaints is nearly comical. Internet publishing is a two-way, interactive process. Because Internet publishers can open their systems to third-parties, a wide variety of opinions can be expressed, even if a majority of them are misinformed.

  9. Do the Twits block messages about the greatest snake oil of the age? the cure-all that can grow hair, increase your libido, help weight loss, increase muscle mass, and make you miraculously attractive? With only a little exaggeration I think I’ve heard touts of CBD for all of those.

  10. “That view may have been common in Silicont Valley”

    I’m sure that’s i typo, but I’m not sure what was intended.

    1. I had half a cup of coffee contemplating the possibilities.

  11. “That’s a stance that requires some serious justification.”

    It requires no legal justification whatsoever, “serious” or otherwise.

  12. “Twitter readers would not be allowed to see that view. That’s a stance that requires some serious justification.”

    Here’s the justification. Twitter owns all of Twitter’s computers and network equipment. As the owner, they get to decide who (if anyone) gets to use it, at their sole discretion.

  13. “Paul agrees with a new court ruling that violating a site’s terms of service isn’t criminal hacking. And now that that’s settled, I have a research proposal for the Hewlett Foundation. Think the content moderation debate is all anecdote and no data? There’s one way to solve that problem: Create hundreds of fake Twitter and Facebook accounts and A/B test the content moderators. (After all, they’ve been A/B testing us for a decade or more.)”

    Careful. It may not be criminal, but it probably still tortious, and it’s definitely a contract breach. I wonder if those tech companies have any lawyers in their employ…

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