"The Long Fuse: Misinformation and the 2020 Election"

A reader e-mailed me about the supposedly secretive "Long Fuse Report" discovered by Shiva Ayyadurai, who is suing alleging Massachusetts officials are responsible for his deplatforming by Twitter. A quick Google search points to various online chatter about it.

I found the report in the court docket, where you can read in four parts (1, 2, 3, 4); you can also read what seems to be the official version of it, not so secretively posted here (direct PDF link). It's 292 pages long, so I'm not planning on reading it myself; but if any of you are really interested in it, I'd love to hear what if anything is especially noteworthy there.

Comments

[dwb68]

idk about the report, but this allegation is deeply disturbing, if true:

Defendants have already admitted under oath that they coordinated an effort to strongly encourage Twitter, via their Trusted Partnership, to delete tweets that specifically referenced
emails from Defendant Galvin’s Office, and aimed to get Twitter to suspend Dr. Shiva repeatedly such that he was unable to send out any tweets during the last month of his campaign run

[dwb68]

On October 30, 2020, during the emergency hearing for a TRO, O’Malley testified that Massachusetts’ Elections Division is a “Twitter Partner,” meaning a respected, trusted partner in
the fight against “Election Misinformation,” as is NASED and every state’s Elections Division.
O’Malley testified that NASED had arranged for Twitter to provide a response to complaints from these “Twitter Partners” as a matter of priority and without necessarily independently
checking the veracity of their complaints, as they come from a State office that is a “Twitter Partner.”

Well, it seem like if Twitter is acting on behalf of state actors, uncritically, censoring Tweets, They have a serious legal exposure problem.

[Krayt]

How about 600 years in jail for the government officials?

It's a light sentence, I admit, due to the severity of the collapse of freedom potentially initiated by government censorship, in this bizarre land of nominal private ownership of business with strong government "partnership", that isn't fascism, no, not no way, not no how.

[Stephen Lathrop]

dwb68, about the serious legal problem. What is your theory of the case? Assuming something happened worth noting, why was it anything but an incident where Shiva Ayyadurai made some off-the-wall, unsubstantiated claims about something, maybe having to do with the election, state officials got in touch with Twitter and said, "you know, we think this claim about us is utter bullshit," and Twitter, a private publisher, said, "Until we get substantiation to show it is true, take it down."

Why would that be anything but cautious editing? Publishers do that kind of thing all the time, and it is a good thing they do. They should be doing far more of it. What do you think the big crime is? Why is it illegal for private publishers to edit what they publish, and to demand substantiation for consequential allegations?

I am asking these questions sincerely, not rhetorically. I hope answers might include more information than I, as a non-Twitter user, can find online. What the hell is, "The long fuse," by the way?

I know I am almost completely in the dark on this, so I could be utterly wrong in what I suggest. If you know what is going on, please fill me in.

[Brett Bellmore]

"Why would that be anything but cautious editing?"

Because government isn't entitled, legally, to engage in "cautious editing" of private speech, and if Twitter is doing it at the government's urging without exercising independent judgement, Twitter is an agent of the government in doing it.

If the government is merely suggesting edits, as anybody could, and Twitter exercises independent judgement under to coercion at all, (Government has enough power that the total absence of coercion wouldn't be my default assumption.) that's different.

But it's alleged here that Twitter is more or less automatically acting on government requests without exercising independent judgment, and that makes government the real actor here.

[apedad]

No, that makes Twitter the actor.

You even say it in the sentence, ". . . Twitter is more or less automatically acting. . . ."

[Michael P]

dwb68 named the relevant doctrine (the state actor doctrine), although slightly mis-described how it would apply: If Twitter censored a private citizen on behalf of government, Twitter is treated as a state actor and constrained by various federal Amendments.

Rendell-Baker v. Kohn probably favors Twitter, but Section 230 and the "Trusted Partnership" relationship undercut some of the factors discussed there (from Blum v. Yaretsky).

[Stephen Lathrop]

Michael P, please give up the passive voice so we may know the subject of your assertion, and tell us specifically what laws Twitter has violated.

Twitter is treated as a state actor by whom? What law says that Twitter may not edit the content it publishes if Twitter has been informed by anyone, including government, that a would-be publication is inaccurate? What law would Twitter violate if it excluded from its contributors someone whom it had found to be unreliable about accuracy? Are you under the impression that Twitter is under compulsion by any Constitutional amendment?

Perhaps you think the government has in some way violated a Constitutional amendment in the process of its relations with Twitter. If so, why would you support a lawsuit against Twitter, one of the victims of the misconduct, instead of against the government, the perpetrator of the misconduct? Is it because you bring bias against private media to the discussion, and entertain a general inclination to see them punished, whatever the circumstances?

More generally, I believe I have cautioned you before that the only safe harbor for press freedom is profusion and diversity among private publishers. This case examples that advice. If there were myriad publishers, with varied policies and prejudices, then it is likely Shiva Ayyadurai could have turned to some other, after Twitter refused to publish him.

Alas, Section 230's abolition of liability for online libel has freed online publishers to grow without the constraint of having to read what they publish beforehand, enabling internet giantism, and winnowing the field to an insufficient few choices. That is the place to focus your misplaced complaints about "censorship."

To calm your anxiety about forums available to publish the political right, Repeal Section 230. Leave it in place, and everyone, not just right wingers, will be at the mercy of outsized publications which are too few in number, but all of them shielded against your attacks, as they should be, by the press freedom clause of the First Amendment. Inviting government in to compel publishers is not a remedy. It is the opposite of support for press freedom.

[dwb68]

Again, no. Twitter acting at the government's behest puts them in major legal jeopardy.

[Stephen Lathrop]

dwb68, thank God Twitter has you to warn them.

[Greg J]

Stephen Lathrop, thank God Twitter has you to White Knight for them

[David Nieporent]

Well, it seem like if Twitter is acting on behalf of state actors, uncritically, censoring Tweets, They have a serious legal exposure problem.

Why? The state action doctrine is a poor fit for this context. As I pointed out the other day in a comment thread, there are three possibilities (assuming for the sake of argument that Twitter did delete EmailGuy's posts):

1) Twitter deleted EmailGuy's posts because it wanted to, without any prompting from government agents.
2) Twitter deleted EmailGuy's posts because it wanted to, after government agents brought those posts to its attention.
3) Twitter deleted EmailGuy's posts because government agents coerced it to do so.

The first case involves no liability for Twitter; it had every right to delete those posts. It's hard to see why the second case would be any different. It still had every right to do so; how can the fact that a government agent talked to Twitter vitiate Twitter's rights to delete those posts? And in the third case, Twitter is a victim of government coercion, so it's rather strange to suggest that it should be liable as such.

[Michael P]

Is that any truer than the plaintiff's claims to have invented email in the late 1970s?

[dwb68]

Yeah someone should get this guy a real lawyer to clean up his case. Some of it seems to be pro se. His amended compliant is 108 pages and goes into the history of Boston smh. I had to quit at p68.

Distilling the complaint, he basically has a pretty good case that Twitter acted on behalf of some state employees to delete 4 embarrassing Tweets, which were state officials in their own words. He seems to have state agents essentially admitting that they censored him. Certainly he has enough that the judge believed him and said he is likely to prevail.

If FaceTwitGram is giving "priority" to state employees ("Twitter Partners") when responding to complaints and deleting Tweets, I think that maybe someone should remind them with a huge lawsuit, they open themselves to becoming de facto state agents themselves.

[David Nieporent]

Certainly he has enough that the judge believed him and said he is likely to prevail.

This is true in a way that isn't.

[dwb68]

Also: I couldn't care less whether Shiva Ayyadurai is a crackpot of not. State agents simply cannot censor crackpots, nor can they accomplish through Twitter what would otherwise be illegal censorship.

Also to be fair to Shiva Ayyadurai, he did try to defend his claim and file a copyright in 1982. https://www.computerworld.com/article/2503255/noam-chomsky-disputes-email-history.html
I am not sure anyone "invented" email, like most things, it evolved over time. It's like that old saying, success has a thousand fathers, while failure is an orphan.

In any case, whether he invented it or not, whether hes a shyster or not, he has the right to say it free from government interference.

[Michael P]

Copyright is for a specific work that has been fixed in tangible form. Parents are for (novel) inventions. AUTODIN (https://en.m.wikipedia.org/wiki/Automatic_Digital_Network) was a computer-based, network messaging system from the 1960s.

[TwelveInchPianist]

Somebody was live tweeting the hearing today and it sounded a little nuts.

And a commentator here was getting dragged over something that sounds to me like bullshit.

[Jaypd]

Remember when this site was about law instead of what's your hot take on this conspiracy theory garbage some right wing idiot filed?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ooooh, right wing idiots! There;s the rub. Now if they'd just stick to left wing idiots, you;d be happy.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

To put it more plainly, if you were attacking the substance of this post, that would make your comments part of a discussion. Asserting baseless accusations doesn't do that.

[TwelveInchPianist]

I haven’t read the claims, but if they’re garbage, why was Twitter and Massachusetts trying to suppress them instead of simply refuting them?

[dwb68]

From the complaint, the 4 deleted Tweets seem to be screenshots of emails from election officials. It looks to me as though they were embarrassing and caught the election officials in a lie. Also, the judge seems to have agreed that Shiva Ayyadurai is likely to prevail on his claims.

[jb]

"Also, the judge seems to have agreed that Shiva Ayyadurai is likely to prevail on his claims."

This seems wrong. I haven't read all the filings because there's a ton, but in the most recent order from the judge it's clear that he intends to dismiss the whole case. Where are you seeing the judge agreeing that Ayyadurai is likely to succeed?

[Noscitur a sociis]

Here are the minutes from yesterday's hearing:

Hearing regarding issues addressed in Memorandum and Order at Dkt. No. 160, Defendants' Motion to Strike or Seal (Dkt. Nos. 172, 175) held on 8/4/2021 by videoconference. Todd and Weld LLP's Motion to Withdraw as Counsel for Plaintiff [Dkt. No. 156] allowed. Claims against the individual defendants for money damages will be dismissed. Motions to Strike will be allowed. Plaintiff shall, by 8/9/21, file a revised Amended Complaint. A renewed Motion to Dismiss shall be filed by 8/16/21, plaintiff's reply due by 8/23/21. By 12:00 p.m. on 8/6/21, the defendants may supplement the record regarding sanctions and file a redacted version for the public record.

If that's how he handles a plaintiff that he thinks is "likely to prevail" I'd hate to see what happens when he comes across a loser!

[Stephen Lathrop]

I haven’t read the claims, but if they’re garbage, why was Twitter and Massachusetts trying to suppress them instead of simply refuting them?

TwelveInch, maybe because they are not trying to, "suppress," anything? Maybe they have yet to get the word that it is their duty to refute every untruth the crazy internet serves up, as fast as they come in? Maybe they read xkcd on that. Or maybe because they are still stuck in the bygone days of yesteryear, where people expected private publishers to vet consequential allegations before publishing them worldwide? Or maybe because they are evil government trolls, trying as hard as they can to do evil, because government is evil, evil, evil. Could be any of those, or something else. Is there any basis for choosing without reading?

[Brett Bellmore]

They wanted the tweets taken down, that's definitionally 'suppressing' them.

[Stephen Lathrop]

They wanted the tweets taken down, that’s definitionally ‘suppressing’ them.

Brett, nope. But who do you mean by, "They?" If it's the government, they did not take the tweets down, although maybe they did do something to warrant suing them. If it's Twitter, then they are free to edit. Given that, why would anyone sue Twitter, and not the government.

It might be Twitter cooperating to suppress, if they had read the tweets and approved them prior to publication, and then reversed under government pressure. Then you would have at least circumstantial evidence that Twitter might be cooperating with a government which was trying to suppress.

You would still be challenged to find reason why Twitter would break any law if it did that, however. But because Twitter presumably did not read the tweets before publishing them, there is no evidence at all, of anything, except editing. Taking them down is just doing editing later that should have instead been done sooner.

Admittedly, it is a bad look, and riles people up. So it is bad publishing policy to do it that way. Repeal Section 230 and you won't have these problems, because publishers will read beforehand what they intend to publish. Much better that way, for a host of reasons. But of course you oppose that, because your real motivation is to attack media, and to impose right-wing government controls on media, not to improve publishing policy.

[Krychek_2]

Twelve Inch, I'm not familiar with the facts so I'm not saying this is what happened, but there's a very easy answer to why someone would try to suppress garbage claims rather than refute them: Because people who believe garbage claims will never be satisfied, no matter how solid the explanation is. Answering questions will simply provide ammunition for more questions, lead to claims that the person answering the question is part of the coverup, and keep the story alive.

Have you ever heard a conspiracy theorist say, "Oh, that explanation makes perfect sense; my bad"? Me neither.

[TwelveInchPianist]

Do you trust the government to distinguish between garbage claims that should be suppressed because only crazy people would believe them, and claims that the government simply finds more convenient to suppress than to refute?

[Krychek_2]

No, but that's not the issue. The government has limited resources. Every hour and dollar spent responding to crazy is an hour or dollar not being spent on something more productive. So, the question on the other side is do I want limited resources spent responding to crazy. Literally millions of dollars have been expended, for example, on audits and lawsuits necessitated by Trump's bullshit claims about the election being stolen, without convincing a single Trumpster that it wasn't stolen after all. And even if the other side ultimately gets ordered to pay your fees and costs, it never actually makes you whole.

Maybe there needs to be some kind of a check and balance to achieve both goals. But I'm not entirely unsympathetic to government officials who've decided they've already spent enough energy responding to crazy.

[TwelveInchPianist]

"Literally millions of dollars have been expended, for example, on audits and lawsuits necessitated by Trump’s bullshit claims about the election being stolen, without convincing a single Trumpster that it wasn’t stolen after all."

Try censoring the audit results and see where that gets you.

[Krychek_2]

Oh, now that they've been done, they need to be well publicized. But don't look for any Trumpists to change their minds. Which then makes one wonder if the same bottom line result wouldn't have happened if the audits hadn't been done at all: The Trumpists would continue to believe the election was stolen, the rest of the country would move on.

[tkamenick]

And you're ignoring that when garbage claims get suppressed, the act of suppression is taken as evidence that it's the truth, that there's a cover-up, and that the suppressors can't be trusted.

[Brett Bellmore]

And that's actually a rational heuristic. People who can refute, do refute. People who can't refute, suppress. Not always true, but it's a rational starting assumption.

[Krychek_2]

But refute how often and how intensely? There's a reason every parent at one time or another tells a child, "I'm not going to argue with you."

And I think the question here is where to draw the line. Government shouldn't refuse to engage at all, because you're right, that would be taken as evidence of a coverup. But when answers have been given, and conspiracy theorists respond with "la la la I can't hear you," at some point you just ignore them and move on.

[Brett Bellmore]

Government is not my parent, and I have not been a child for decades. Analogy to the rights of a child vs a parent are not valid when discussing adults vs adults.

And suppressing and ignoring are radically different things. The government is perfectly capable of ignoring posts on Twitter without telling Twitter to take them down.

That the posts contained screen shots of emails by government employees makes it all the more egregious. This was the government genuinely trying to hide real information.

[David Nieporent]

Because they were garbage.

[Kazinski]

If state officials used their influence to get him kicked off Twitter, then he should just thank them and move on.

[Rev. Arthur L. Kirkland]

Watching this blog unravel is vaguely disappointing.

[loki13]

I mean ... EV basically just did a "Many people are saying ...." post.