The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is Twitter using the health emergency to settle political scores?
Episode 310 of the Cyberlaw Podcast
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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