Jim Jordan Celebrates Google Caving To His Pressure In Letter That Says Caving To Government Pressure Is Wrong

from the such-a-stupid-timeline dept

Look, if you want to cut to the chase: the lawyers working for Google and Meta know that the MAGA world is very, very stupid and very, very gullible, and it’s very, very easy to tell them something that they know will be interpreted as a “victory” while actually signaling something very, very different. You could just reread my analysis of Meta and Mark Zuckerberg’s silly misleading caving to Rep. Jim Jordan last year, because this is more of the same.

This time it’s Google doing the caving in a manner they absolutely know doesn’t actually admit to things that Jordan and the MAGAverse will insist it does actually admit. If anything, it’s actually admitting the reverse. Specifically, it sent a letter replying to some Jim Jordan subpoenas, which Jim Jordan is claiming as a victory for free speech because Google said things he can misrepresent as such.

Lots of very silly people (including Jordan) have been running around all week falsely claiming that Google has “admitted” that the Biden administration illegally censored people, and in response, they’re now reinstating accounts of people who were “unfairly censored.”

To be fair, this is what Google wants Jim Jordan and MAGA people to believe because it feeds into their pathetic victim narrative.

But it’s not what Google actually said for people who can read (and comprehend basic English). I won’t go through the entire letter, but let’s cover the supposed admission of censorship from the Biden admin:

Senior Biden Administration officials, including White House officials, conducted repeated and sustained outreach to Alphabet and pressed the Company regarding certain user-generated content related to the COVID-19 pandemic that did not violate its policies. While the Company continued to develop and enforce its policies independently, Biden Administration officials continued to press the Company to remove non-violative user-generated content.

It is not new, nor is it all that controversial, that the Biden administration did some outreach regarding COVID-19 content. But note what Google says here: “the Company continued to develop and enforce its policies independently.” In other words, Biden folks reached out, Google said “thanks, but that doesn’t violate our policies, so we’re not doing anything about it.”

Now, we can say that the government shouldn’t be in the business of telling private companies anything at all, but that’s a bit rich coming from the MAGA world that spent the last week focused on getting Disney to “moderate” Jimmy Kimmel out of a fucking job with actual threats of punishment if they failed to do so.

And that, once again, is the key issue: as the Supreme Court has long held, government officials are allowed to use “the bully pulpit” to seek to persuade companies as long as there is no implicit or explicit threat. Some will argue that the message here must have come with an implicit threat, and that’s an area where people can debate and differ on, though the fact that Google flat out admits that it basically told the Biden admin “no” seems to undermine that there was any threat included.

As online platforms, including Alphabet, grappled with these decisions, the Administration’s officials, including President Biden, created a political atmosphere that sought to influence the actions of platforms based on their concerns regarding misinformation.

Again, this is not new. The Biden admin did this publicly and many of us called them out for it. The question is whether or not they reached the level of coercion.

Meanwhile, this is either accidental irony, or Google’s lawyers know that Jim Jordan would totally miss the sarcasm included in this next bit:

It is unacceptable and wrong when any government, including the Biden Administration, attempts to dictate how the Company moderates content, and the Company has consistently fought against those efforts on First Amendment grounds.

Why do I say it’s ironic? Because Jim Jordan’s subpoenas and demands to Google are very much a government official attempting to dictate how Google moderates content (in that he wants them to not moderate content he favors).

Indeed, right after this, Google starts groveling about how it’s so, so sorry that YouTube took moderation actions on conspiracy theory and nonsense peddler accounts that Jordan likes and thus will begin to reinstate them.

Yes, in the very letter where Google tells Jim Jordan “it’s wrong for the government to tell us how to moderate,” it also says “thank you for telling us how to moderate, we are following your demands.” Absolutely incredible.

Perhaps even more incredible is the discussion of fact checking. The company mentions that it doesn’t employ third-party fact checkers for YouTube to review content for moderation purposes:

In contrast to other large platforms, YouTube has not operated a fact-checking program that identifies and compensates fact-checking partners to produce content to support moderation. YouTube has not and will not empower fact-checkers to take action on or label content across the Company’s services.

Which in turn led Jordan to crow about how this was a huge success:

If you can’t read that, it’s Jordan saying:

But that’s not all. YouTube is making changes to its platform to prevent future censorship. YouTube is committing to the American people that it will NEVER use outside so-called “fact-checkers” to censor speech. No more telling Americans what to believe and not believe.

But fact checking is not “censorship.” It’s literally “more speech.” It’s not telling anyone what to believe or what not to believe. It’s providing additional information. You know, that whole “marketplace of ideas” that they keep telling us is so important.

Then, Jordan crowed directly about how his own efforts caused YouTube to reinstate people. In other words, in the same letter that he insists supports him and which says it is “unacceptable and wrong” for government officials “to dictate how the Company moderates content” he excitedly claims credit for dictating how YouTube should moderate content:

“Because of our work.” So you are flat out admitting that you have told Google how to moderate, and it is complying by reinstating accounts that you wanted them to reinstate.

That certainly would raise questions about unconstitutional jawboning if we didn’t live in a world in which it has been decided “it’s okay when Republicans do it” but not okay when Democrats do something much less direct or egregious.

It’s almost like there’s a double standard, and it’s very much like Google is willing to suck up to MAGA folks to take advantage of that double standard… just as Mark Zuckerberg did.

Filed Under: 1st amendment, content moderation, donald trump, free speech, jawboning, jim jordan, joe biden
Companies: google, youtube

The TikTok Ban Was Jawboning, And Yet Another Example Illustrating Why Jawboning Is Bad (And Unconstitutional)

from the it-was-right-there dept

This post was written on Sunday. By the time you read it there may have been 12,492 further unconstitutional TikTok-related hijinks since then, but because this particular kind of unconstitutional violation might well rear its ugly head again, if not with respect to TikTok then with respect to something else, it’s still worth pointing out the problem, even if how it applies to TikTok may have been obviated by even stupider deviations from the Constitution since.

There was an argument left on the table in the TikTok briefs at the Supreme Court: The ban, among its many unconstitutional flaws, was also unconstitutional jawboning. And Supreme Court precedent from just last year explained why.

In NRA v. Vullo the Court made clear that the government can’t go after a speaker it doesn’t like by pressuring an intermediary the speaker needs to deal with as a way of sticking it to the speaker. And yet, with the TikTok ban, that’s exactly what Congress did: impose liability on the intermediary services TikTok needs to deal with to run if they help TikTok run.

Just look at how the statute is written, and where the prohibition is. Right there, in its first main provision at Section 2(a) (and Section 1 is just the short title of the law), here’s what the law says:

It shall be unlawful for an entity to distribute, maintain, or update (or enable the distribution, maintenance, or updating of) a foreign adversary controlled application by carrying out, within the land or maritime borders of the United States, any of the following:

And then it describes what these other non-TikTok third parties cannot do, namely host the app in its app stores:

(A) Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

Or provide any sort of server support:

(B) Providing internet hosting services to enable the distribution, maintenance, or updating of such foreign adversary controlled application for users within the land or maritime borders of the United States.

It is this unconstitutional statutory construction that, ironically, is why Trump can’t easily fix this mess without making a bigger one. Because even if he promises not to go after TikTok, he still hasn’t solved the problem because the law’s teeth are not just biting TikTok but anyone helping the app work. And they are sharp teeth, threatening billions in penalties:

An entity that violates subsection (a) shall be subject to pay a civil penalty in an amount not to exceed the amount that results from multiplying $5,000 by the number of users within the land or maritime borders of the United States determined to have accessed, maintained, or updated a foreign adversary controlled application as a result of such violation.

So in the cross-hairs of this law are Google and Apple, which host the app in their app stores,* but also anyone else who provides any sort of services, like perhaps Amazon, if the app is using their cloud services, and potentially CDNs that help handling the data load, and possibly services that help with transmission like backbone providers and wireless telcos if its services are used to connect end users to the service (even if this law omits them with its focus on “hosting,” and it’s not entirely clear that it does, the next law could easily catch them)… The degree of corrupt abdication of his obligation to enforce the law as Chief Executive of the United States needed to save TikTok is significantly greater than if he just needed to universally exempt TikTok from this law, because he’d have to exempt them all.

It does, of course, beg the question as to why any of these affected entities did not sue to challenge the law themselves, because the law is about them. And this sort of impermissible jawboning is going to keep affecting them as intermediaries, again and again, until there is finally enough pushback to take this unconstitutional weapon out of the government’s regulatory quiver.

But that they even needed to is another reason why jawboning is bad. The government put these companies in a position they were not supposed to find themselves in, where they couldn’t freely exercise their own rights as service providers because the government didn’t like a user of their services. And to vindicate their own right they would have to expend the costs associated with litigation as well as the risk of painting yourself as a target for a government that has shown itself to be vindictive to technology platforms it doesn’t like. It was probably a lot more expedient just to refuse service to TikTok and somehow hope that the government does not start to pick off, one by one, everyone else they provide service to with other laws later…

Of course, given the other constitutional problems facially manifest in the TikTok ban, they may have thought it unnecessary, as surely TikTok’s challenge should have been enough. And while they probably should have shown up as amici to help, and in doing so point out this jawboning problem, the rushed briefing during the holidays may have well made such participation in the litigation, at least at the Supreme Court, functionally impossible.

Perhaps TikTok should have raised the jawboning issue itself – as it is it doesn’t seem like the NRA v. Vullo case was even cited in its Supreme Court briefs – but in its briefs it only had so many words it could include and so much time to write them. And the arguments it did bring to bear should have been availing on their own.

But maybe it’s just as well: while it’s bad enough that the Court has backed off of supporting the First Amendment’s protections in all the ways it just did, it would be even worse if it had also backed off of its protective precedent in this context too.

* We also should be concerned about the cybersecurity risk that comes from pressuring app stores to disable distribution of app updates, leaving users to run only outdated software on their phones, but that’s a subject for another post…

Filed Under: 1st amendment, free speech, jawboning, tiktok ban, vullo
Companies: apple, bytedance, google, tiktok

Rogan Misses The Mark: How Zuck’s Misdirection On Gov’t Pressure Goes Unchallenged

from the reality-distortion-podcast dept

If you only remember two things about the government pressure campaign to influence Mark Zuckerberg’s content moderation decisions, make it these: Donald Trump directly threatened to throw Zuck in prison for the rest of his life, and just a couple months ago FCC Commissioner (soon to be FCC chair) Brendan Carr threatened Meta that if it kept on fact-checking stories in a way Carr didn’t like, he would try to remove Meta’s Section 230 protections in response.

Two months later — what do you know? — Zuckerberg ended all fact-checking on Meta. But when he went on Joe Rogan, rather than blaming those actual obvious threats, he instead blamed the Biden administration, because some admin officials sent angry emails… which Zuck repeatedly admits had zero impact on Meta’s actual policies.

Mark Zuckerberg may be done with fact-checking, but we can still fact-check Mark Zuckerberg. And especially some of the misleading narratives coming out of his latest interview with Joe Rogan.

Indeed, this very fact check may be a good example of what I talked about regarding Zuckerberg’s decision to end fact-checking, which is that it’s not as straightforward as some people think, as layers of bullshit may be presented misleadingly around a kernel of truth, and peeling back the layers is important for understanding.

Indeed, this is my second attempt at writing this article. I killed the first version soon after it hit 10,000 words and I realized no one was going to read all that. So this is a more simplified version of what happened, which can be summarized as: the actual threats came from the GOP, to which Zuckerberg quickly caved. The supposed threats from the Biden admin were overhyped, exaggerated, and misrepresented, and Zuck directly admits he was able to easily refuse those requests.

All the rest is noise.

I know that people who dislike Rogan dismiss him out of hand, but I actually think he’s often a good interviewer for certain kinds of conversations. He’s willing to speak to all sorts of people and even ask dumb questions, taking on the role of listeners/viewers. And that’s actually really useful (and enlightening) in certain circumstances.

Where it goes off the rails, such as here, is where (1) nuance and detail matter and (2) where the person he is interviewing has an agenda to push with a message that he knows Rogan will eat up, and knows Rogan does not understand enough to pick apart what really happened.

This is not the first time that Zuckerberg has gone on Rogan and launched a narrative by saying things that are technically true in a manner that is misleading, likely knowing that Rogan and his fans wouldn’t understand the nuances, and would run with a misleading story.

Two and a half years ago, he went on Joe Rogan and said that the FBI had warned the company about the potential for hack and leak efforts put forth by the Russians, which Rogan and a whole bunch of people, including the mainstream media, falsely interpreted as “the FBI told us to block the Hunter Biden laptop story.”

Except that’s not what he said. He was asked about the NY Post story (which Facebook never actually blocked, they only — briefly — blocked it from “trending”), and Zuckerberg very carefully worded his answer to say something that was already known, but which people not listening carefully might think revealed something new:

The background here is that the FBI came to us – some folks on our team – and was like ‘hey, just so you know, you should be on high alert. We thought there was a lot of Russian propaganda in the 2016 election, we have it on notice that basically there’s about to be some kind of dump that’s similar to that’.

But the fact that the FBI had sent out a general warning to all of social media to be on the lookout for disinfo campaigns like that was widely known and reported on way earlier. The FBI did not comment specifically on the Hunter Biden laptop story, nor did they tell Facebook (or anyone) to take anything down.

Still, that turned into a big thing, and a bunch of folks thought it was a big revelation. In part because when Zuck told that story to Rogan, Rogan acted like it was big reveal, because Rogan doesn’t know the background or the details or the fact that this had been widely reported. He also doesn’t realize there’s a huge difference between a general “be on the lookout” warning and a “hey, take this down!” demand, with the former being standard and the latter being likely unconstitutional.

In other words, Zuck has a history of using Rogan’s platform to spread dubious narratives, knowing that Rogan lacks the background knowledge to push back in the moment.

After that happened, I was at least open to the idea that Zuck just spoke in generalities and didn’t realize how Rogan and audience would take what he said and run with it, believing a very misleading story. But now that he’s done it again, it seems quite likely that this is deliberate. When Zuckerberg wants to get a misleading story out to a MAGA-friendly audience, he can reliably dupe Rogan’s listeners.

Indeed, this interview was, in many ways, similar to what happened two years ago. He was relating things that were already widely known in a misleading way, and Rogan was reacting like something big was being revealed. And then the media runs with it because they don’t know the details and nuances either.

This time, Zuckerberg talks about the supposed pressure from the Biden administration as a reason for his problematic announcement last week:

Rogan: What do you think started the pathway towards increasing censorship? Because clearly we were going in that direction for the last few years. It seemed like uh we really found out about it when Elon bought Twitter and we got the Twitter Files and when you came on here and when you were explaining the relationship with FBI where they were trying to get you to take down certain things that were true and real and certain things they tried to get you to limit the exposure to them. So it’s these kind of conversations. Like when did all that start?

So first off, note the framing of this question. It’s not accurate at all. Social media websites have always had content moderation/content policy efforts. Indeed, Facebook was historically way more aggressive than most. If you don’t, your platform fills up with spam, scams, abuse, and porn.

That’s just how it works. And, indeed, Facebook in the early days was aggressively paternalistic about what was — and what was not — allowed on its site. Remember its famously prudish “no nudity” policy? Hell, there was an entire Radiolab podcast about how difficult that was to implement in practice.

So, first, calling it “censorship” is misleading, because it’s just how you handle violations of your rules, which is why moderation is always a better term for it. Rogan has never invited me on his podcast. Is that censorship? Of course not. He has rules (and standards!) for who he platforms. So does Meta. Rejecting some speech is not “censorship”, it’s just enforcing your own rules on your own private property.

Second, Rogan himself is already misrepresenting what Zuckerberg told him two years ago about the FBI. Zuck did not say that the FBI was trying to get Facebook to “take down certain things that were true and real” and “limit the exposure to them.” They only said to be on the lookout for potential attempts by foreign governments to interfere with an election, leaving it up to the platforms to decide how to handle that.

On top of that, the idea that the simple fact of how content moderation works only became public with the Twitter Files is false. The Twitter Files revealed… a whole bunch of nothing interesting that idiots have misinterpreted badly. Indeed we know this because (1) we paid attention, and (2) Elon’s own legal team admitted in court that what people were misleadingly claiming about the Twitter Files wasn’t what was actually said.

From there, Zuck starts his misleading but technically accurate-ish response:

Zuck: Yeah, well, look, I think going back to the beginning, or like I was saying, I think you start one of these if you care about giving people a voice, you know? I wasn’t too deep on our content policies for like the first 10 years of the company. It was just kind of well known across the company that, um, we were trying to give people the ability to share as much as possible.

And, issues would come up, practical issues, right? So if someone’s getting bullied, for example, we deal with that, right? We put in place systems to fight bullying, you know? If someone is saying hey um you know someone’s pirating copyrighted content on on the service, it’s like okay we’ll build controls to make it so we’ll find IP protected content.

But it was really in the last 10 years that people started pushing for like ideological-based censorship and I think it was two main events that really triggered this. In 2016 there was the election of President Trump, also coincided with basically Brexit in the EU and sort of the fragmentation of the EU. And then you know in 2020 there was COVID. And I think that those were basically these two events where for the first time we just faced this massive massive institutional pressure to basically start censoring content on ideological grounds….

So this part is fundamentally, sorta, kinda accurate, which sets up the kernel of truth around which much bullshit will be built. It’s true that Zuck didn’t pay much attention to content policies on the site early on, but it’s nonsense that it was about “giving people a voice.” That’s Zuck retconning the history of Facebook. Remember, they only added things like the Newsfeed (which was more about letting people talk) when Twitter came about and Zuck freaked out that Twitter would destroy Facebook.

Second, he then admits that the company has always moderated, though he’s wrong that it was so reactive. From quite early on (as mentioned above) the company had decently strict content policies regarding how the site was moderated. And, really, much of that was based around wanting to make sure that users had a good experience on the site. So yes, things like bullying were blocked.

But what is bullying is a very subjective thing, and so much of content moderation is just teams trying to tell you to stop being such a jackass.

It is true that there was pressure on Facebook to take moderation challenges more seriously starting in 2016, and (perhaps?!?) if he had actually spent more time understanding trust & safety at that time, he would have a better understanding of the issues. But he didn’t, which meant that he made a mess of things, and then tried to “fix it” with weird programs like the Oversight Board.

But it also meant that he’s never, ever been good at explaining the inherent tradeoffs in trust & safety, and how some people are always going to dislike the choices you make. A good leader of a social network understands and can explain those tradeoffs. But that’s not Zuck.

Also, and this is important, Zuckerberg’s claims about pressure to moderate on “ideological” grounds are incredibly misleading. Yes, I’m sure some people were putting pressure on him around that, but it was far from mainstream and easy to ignore. People were asking him to stop potentially dangerous misinformation that was causing harm. For example, the genocide in Myanmar. Or information around COVID that was potentially legitimately dangerous.

In other words, it was really (like so much of trust & safety) an extension of the “no bullying” rule. The same was true of protecting marginalized groups like LGBTQ+ users or on issues like Black Lives Matter. The demands from users (not the government in those cases) were about protecting more marginalized communities from harassment and bullying.

I’m going to jump ahead because Zuck and Rogan say a lot of stupid shit here, but this article will get too long if I go through all of it. So let’s jump forward a couple of minutes, to where Zuckerberg really flubs his First Amendment 101 in embarrassing ways while trying to describe how Meta chose to handle moderation of COVID misinformation.

Zuckerberg: Covid was the other big one. Where that was also very tricky because you know at the beginning it was, you know, it’s like a legitimate “public health crisis,” you know, in the beginning.

And it’s… even people who are like the most ardent First Amendment defenders… that the Supreme Court has this clear precedent, that’s like all right you can’t yell fire in a crowded theater. There are times when if there’s an emergency your ability to speak can temporarily be curtailed in order to get an emergency under control.

So I was sympathetic to that at the beginning of Covid, it seemed like, okay you have this virus, seems like it’s killing a lot of people. I don’t know like we didn’t know at the time how dangerous it was going to be. So, at the beginning, it kind of seemed like okay we should give a little bit of deference to the government and the health authorities on how we should play this.

But when it went from, you know, two weeks to flatten the curve to… in like in the beginning it was like okay there aren’t enough masks, masks aren’t that important to, then, it’s like oh no you have to wear a mask. And you know all the, like everything, was shifting around. It just became very difficult to kind of follow.

In trying to defend Meta’s approach to COVID misinformation, Zuck manages to mangle First Amendment law in a way that’s both legally inaccurate and irrelevant to the actual issues at play.

There’s so much to unpack here. First off, he totally should have someone explain the First Amendment to him. He not only got it wrong, he even got it wrong in a way that is different than how most people get it wrong. We’ve covered the whole “fire in a crowded theater” thing so many times here on BestNetTech, so we’ll do the abbreviated version:

1. It’s not a “clear precedent.” It’s not a precedent at all. It was an offhand comment (in legal terms: dicta, so not precedential) in a case about jailing someone for handing out anti-war literature (something most people today would recognize as pretty clearly a First Amendment problem).
2. The Justice who said it, Oliver Wendell Holmes, appeared to regret it almost immediately, and in a similar case very shortly thereafter changed his tune and became a much more “ardent First Amendment defender.”
3. Most courts and lawyers (though there are a few holdouts) insist that whatever precedent there was in Schenck (which again, did not include that line) was effectively overruled a half century later in a different case that rejected the test in Schenck and moved to the “incitement to imminent lawless action” test.

So, quoting “fire in a crowded theater” these days is generally used as a (very bad, misguided) defense of saying “well, there’s some speech that’s so bad it’s obviously unprotected,” but without being able to explain why this particular speech is unprotected.

But Zuck isn’t even using it in that way. He seems to have missed that the whole point of the Holmes dicta (again, not precedent) was to talk about falsely yelling fire. Zuck implies that the (not actual) test is “can we restrict speech if there’s an actual fire, an actual emergency.” And, that’s also wrong.

But, the wrongness goes one layer deeper as well, because the First Amendment only applies to restrictions the government can put on speakers, not what a private entity like Meta (or the Joe Rogan Experience) can do on their own private property.

And then, even once you get past that, Zuck isn’t wrong that there was a lot of confusion about COVID and health in the early days, including lots of false information that came under the imprimatur of “official” sources, but… dude, Meta deliberately made the decision to effectively let the CDC decide what was acceptable even after many people (us included!) pointed out how stupid it was for platforms to outsource their decisions on “COVID misinfo” to government agencies which almost certainly would get stuff wrong as the science was still unclear.

But it wasn’t the White House that pressured Zuck into following the CDC position. Meta (alone among the major tech platforms) publicly declared early in the pandemic (for what it’s worth, when Trump was still President) that its approach to handling COVID misinformation would be based on “guidance” from official authorities like the CDC and WHO. Many of us felt that this was actually Meta abdicating its role and giving way too much power to government entities in the midst of an unclear scientific environment.

But for him to now blame the Biden admin is just blatantly ahistorical.

And from there, it gets worse:

Zuckerberg: This really hit… the most extreme, I’d say, during it was during the Biden Administration, when they were trying to roll out um the vaccine program and… Now I’m generally, like, pretty pro rolling out vaccines. I think on balance the vaccines are more positive than negative.

But I think that while they’re trying to push that program, they also tried to censor anyone who was basically arguing against it. And they pushed us super hard to take down things that were honestly were true. Right, I mean they they basically pushed us and and said, you know, anything that says that vaccines might have side effects, you basically need to take down.

And I was just like, well we’re not going to do that. Like, we’re clearly not going to do that.

Rogan then jumps in here to ask “who is they” but this is where he’s showing his own ignorance. The key point is the last line. Zuckerberg says he told them “we’re not going to do that… we’re clearly not going to do that.”

That’s it. That’s the ballgame.

The case law on this issue is clear: the government is allowed to try to persuade companies to do something. That’s known as using the bully pulpit. What it cannot do is coerce a company into taking action on speech. And if Zuckerberg and Meta felt totally comfortable saying “we’re not going to do that, we’re clearly not going to do that,” then end of story. They didn’t feel coerced.

Indeed, this is partly what the Murthy case last year was about. And during oral arguments, Justices Kavanaugh and Kagan (both of whom had been lawyers in the White House in previous lives) completely laughed off the idea that White House officials couldn’t call up media entities and try to convince them to do stuff, even with mean language.

Here was Justice Kavanaugh:

JUSTICE KAVANAUGH: Do you think on the anger point, I guess I had assumed, thought, experienced government press people throughout the federal government who regularly call up the media and — and berate them. Is that — I mean, is that not —

MR. FLETCHER: I — I — I don’t want

JUSTICE KAVANAUGH: — your understanding? You said the anger here was unusual. I guess I wasn’t —

MR. FLETCHER: So that —

JUSTICE KAVANAUGH: — wasn’t entirely clear on that from my own experience.

Later on, he said more:

JUSTICE KAVANAUGH: You’re speaking on behalf of the United States. Again, my experience is the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.

Justice Kagan felt similarly:

JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.

You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.

I mean, this happens literally thousands of times a day in the federal government.

“Literally thousands of times a day in the federal government.” What happened was not even that interesting or unique. The only issue, and the only time it creates a potential First Amendment problem, is if there is coercion.

This is why the Supreme Court rejected the argument in the Murthy case that this kind of activity was coercive and violated the First Amendment. The opinion, written by Justice Coney Barrett, makes it pretty clear that the White House didn’t even apply that much pressure towards Facebook on COVID info beyond some public statements, and instead most of the communication was Facebook sending info to the government (both admin officials and the CDC) and asking for feedback.

The Supreme Court notes that Facebook changed its policies to restrict more COVID info before it had even spoken to people in the White House.

In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.

All of this info is public. It was in the court case. It’s in the Supreme Court transcript of oral arguments. It’s in the ruling in the Supreme Court.

Yet Rogan acts like this is some giant bombshell story. And Zuckerberg just lets him run with it. And then, the media ran with it as well, even though it’s a total non-story. As Kagan said, attempts to persuade the media happen literally thousands of times a day.

It only violates the First Amendment if they move over into coercion, threatening retaliation for not listening. And the fact that Meta felt free to say no and didn’t change its policies makes it pretty clear this wasn’t coercion.

But, Zuckerberg now knows he’s got Rogan caught on his line and starts to play it up. Rogan first asks who was “telling you to take down things” and Zuckerberg then admits that he wasn’t actually involved in any of this:

Rogan: Who is they? Who’s telling you to take down things that talk about vaccine side effects?

Zuckerberg: It was people in the um in the Biden Administration I think it was um… you know I wasn’t involved in those conversations directly…

Ah, so you’re just relaying the information that was publicly available all along and which we already know about.

Rogan then does a pretty good job of basically explaining my Impossibility Theorem (he doesn’t call it that, of course), noting the sheer scale of Meta properties, and how most people can’t even comprehend the scale, and that mistakes are obviously going to happen. Honestly, it’s one of the better “mainstream” explanations of the impossibility of content moderation at scale

Rogan: You’re moderating at scale that’s beyond the imagination. The number of human beings you’re moderating is fucking insane. Like what is… what’s Facebook… what how many people use it on a daily basis? Forget about how many overall. Like how many people use it regularly?

Zuck: It’s 3.2 billion people use one of our services every day

Rogan: (rolls around) That’s…!

Zuck: Yeah, it’s, no, it’s wild

Rogan: That’s more than a third of the planet! That’s so crazy and it’s almost half of Earth!

Zuck: Well on a monthly basis it is probably.

Rogan: UGGH!

But just I want I want to say that though for there’s a lot of like hypercritical people that are conspiracy theorists and think that everybody is a part of some cabal to control them. I want you to understand that, whether it’s YouTube or all these and whatever place that you think is doing something that’s awful, it’s good that you speak because this is how things get changed and this is how people find out that people are upset about content moderation and and censorship.

But moderating at scale is insane. It’s insane. What we were talking the other day about the number of videos that go up every hour on YouTube and it’s banana. It’s bananas. That’s like to try to get a human being that is reasonable, logical and objective, that’s going to analyze every video? It’s virtually impossible. It’s not possible. So you got to use a bunch of tools. You got to get a bunch of things wrong.

And you have also people reporting things. And how how much is that going to affect things there. You could have mass reporting because you have bad actors. You have some corporation that decides we’re going to attack this video cuz it’s bad for us. Get it taken down.

There’s so much going on. I just want to put that in people’s heads before we go on. Like understand the kind of numbers that we’re talking about here.

Like… that’s a decent enough explanation of the impossibility of moderating content at scale. If Zuckerberg wanted to lean into that, and point out that this impossibility and the tradeoffs it creates makes all of this a subjective guessing game, where mistakes often get made and everyone has opinions, that would have been interesting.

But he’s tossed out the line where he wants to blame the Biden administration (even though the evidence on this has already been deemed unproblematic by the Supreme Court just months ago) and he’s going to feed Rogan some more chum to create a misleading picture:

Zuckerberg: So I mean like you’re saying I mean this is… it’s so complicated this system that I could spend every minute of all of my time doing this and not actually focused on building any of the things that we’re trying to do. AI glasses, like the future of social media, all that stuff.

So I get involved in this stuff, but in general we we have a policy team. There are people who I trust there. The people are kind of working on this on a day-to-day basis. And the interactions that um that I was just referring to, I mean a lot of this is documented… I mean because uh you know Jim Jordan and the the House had this whole investigation and committee into into the the kind of government censorship around stuff like this and we produced all these documents and it’s all in the public domain…

I mean basically these people from the Biden Administration would call up our team and like scream at them and curse. And it’s like these documents are… it’s all kind of out there!

Rogan: Gah! Did you record any of those phone calls? God!

Zuckerberg: I don’t no… I don’t think… I don’t think we… but but… I think… I want listen… I mean, there are emails. The emails are published. It’s all… it’s all kind of out there and um and they’re like… and basically it just got to this point where we were like, no we’re not going to. We’re not going to take down things that are true. That’s ridiculous…

Parsing what he’s saying here is important. Again, we already established above a few important facts that Rogan doesn’t understand, and either Zuck doesn’t understand or is deliberately being coy in his explanation: (1) government actors are constantly trying to persuade media companies regarding their editorial discretion and that’s not against the law in any way, unless it crosses the line into coercion, and Zuck is (once again) admitting there was no coercion and they had no problem saying no. (2) He’s basing this not on actual firsthand knowledge but on stuff that is “all kind of out there” because “the emails are published” and “it’s all in the public domain.”

Now, because I’m not that busy creating AI glasses (though I am perhaps working on the future of social media), I actually did pay pretty close attention to what happened with those published emails and the documents in the public domain, and Zuckerberg is misrepresenting things, either on purpose or because the false narrative filtered back to him.

The reason I followed it closely is because I was worried that the Biden administration might cross the First Amendment line. This is not the case of me being a fan of the Biden administration, whose tech policies I thought were pretty bad almost across the board. The public statements that the White House made, whether from then press secretary Jen Psaki or Joe Biden himself, struck me as stupid things to say, but they did not appear to cross the First Amendment line, though they came uncomfortably close.

So I followed this case closely, in part, because if there was evidence that they crossed the line, I would be screaming from the BestNetTech rooftops about it.

But, over and over again, it became clear that while they may have walked up to the line, they didn’t seem to cross it. That’s also what the Supreme Court found in the Murthy case.

So when Zuckerberg says that there are published emails, referencing the “screaming and cursing,” I know exactly what he’s talking about. Because it was a highlight of the district court ruling that claimed the White House had violated the First Amendment (which was later overturned by the Supreme Court).

Indeed, in my write-up of that District Court ruling, I even called out the “cursing” email as an example that struck me as one of the only things that might actually be a pretty clear violation of the First Amendment. Here’s what I wrote two years ago when that ruling came out:

Most of the worst emails seemed to come from one guy, Rob Flaherty, the former “Director of Digital Strategy,” who seemed to believe his job in the White House made it fine for him to be a total jackass to the companies, constantly berating them for moderation choices he disliked.

I mean, this is just totally inappropriate for a government official to say to a private company:

Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”

But then I dug deeper and saw the filing where that quote actually comes from, realizing that the judge in the district court was taking it totally out of context. The ruling made it sound like Flaherty’s cursing outburst was in response to Facebook/Zuck refusing to go along with a content moderation demand.

If that were actually the case, then that would absolutely violate the First Amendment. The problem is that it’s not what happened. It was still inappropriate in general, but not an unconstitutional attack on speech.

What had happened was that Instagram had a bug that prevented the Biden account from getting more followers, and the White House was annoyed by that. Someone from Meta responded to a query, saying basically “oops, it was a bug, our bad, but it’s fixed now” and that response was forwarded to Flaherty, who acted like a total power-mad jackass with the “Are you guys fucking serious? I want an answer on what happened here and I want it today” response.

So here’s the key thing: that heated exchange had absolutely nothing to do with pressuring Facebook on its content moderation policies. That “public domain” “cursing” email is entirely about a bug that prevented the Biden account from getting more followers, and Rob throwing a bit of a shit fit about it.

As Zuck says (but notably no one on the Rogan team actually looks up), this is all “out there” in “the public domain.” Rogan didn’t look it up. It’s unclear if Zuckerberg looked it up.

But I did:

We can still find that response wholly inappropriate and asshole-ish. But it’s not because Facebook refused to take down information on vaccine side effects, as is clearly implied (and how Rogan takes it).

Indeed, Zuckerberg (again!) points out that the company’s response to requests to remove anti-vax memes was to tell the White House no:

Zuck: They wanted us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something um you know you’re going to see an ad that says okay if you took a Covid vaccine you’re um eligible you you know like uh for for this kind of payment like this sort of like class action lawsuit type meme.

And they’re like, “No, you have to take that down.” We just said, ‘No, we’re not going to take down humor and satire. We’re not going to take down things that are true.“

He then does talk about the stupid Biden “they’re killing people” comment, but leaves out the fact that Biden walked that back days later, admitting “Facebook isn’t killing people” and instead blaming people on the platform spreading misinformation and saying “that’s what I meant.”

But it didn’t change the fact that Facebook refused to take action on those accounts.

So even after he’s said multiple times that Facebook’s response to whatever comments came in from the White House was to tell them “no,” which is exactly what the Supreme Court made clear showed there was no coercion, Rogan goes on a rant as if Zuckerberg had just told him that they did, in fact, suppress the content the White House requested (something Zuck directly denied to Rogan multiple times, even right before this rant):

Rogan: Wow. [sigh] Yeah, it’s just a massive overstepping. Also, you weren’t killing people. This is the thing about all of this. It’s like they suppressed so much information about things that people should be doing regardless of whether or not you believe in the vaccine, regardless… put that aside. Metabolic health is of the utmost importance in your everyday life whether there’s a pandemic or there’s not and there’s a lot of things that you can do that can help you recover from illness.

It prevents illnesses. It makes your body more robust and healthy. It strengthens your immune system. And they were suppressing all that information and that’s just crazy. You can’t say you’re one of the good guys if you’re suppressing information that would help people recover from all kinds of diseases. Not just Covid. The flu, common cold, all sorts of different things. High doses of Vitamin C, D3 with K2 and magnesium. They were suppressing this stuff because they didn’t want people to think that you could get away with not taking a vaccine.

Dude, Zuck literally told you over and over again that they said no to the White House and didn’t suppress that content.

But Zuck doesn’t step in to correct Rogan’s misrepresentations, because he’s not here for that. He’s here to get this narrative out, and Rogan is biting hard on the narrative. Hilariously, he then follows it up by saying how the thing that Zuck just said didn’t happen, but which Rogan is chortling along as if it did happen, proves the evils of “distortion of facts” and…. where the hell is my irony font?

Rogan: This is a crazy overstep, but scared the shit out of a lot of people… redpilled as it were. A lot of people, because they realized like, oh, 1984 is like an instruction manual…

Zuck: Yeah, yeah.

Rogan: It’s like this is it shows you how things can go that way with wrong speak and with bizarre distortion of facts.

I mean, you would know, wouldn’t you, Joe?

From there, they pivot to a different discussion, though again, it’s Zuckerberg feeding Rogan lines about how the US ought to “protect” the US tech industry from foreign governments, rather than trying to regulate them.

A bit later on, there actually is a good discussion about the kinds of errors that are made in content moderation and why. Rogan (after spending so much time whining about the evils of censorship) suddenly turns around and says that, well, of course, Facebook should be blocking “misinformation” and “outright lies” and “propaganda”:

Rogan: But you do have to be careful about misinformation! And you have to be careful about just outright lies and propaganda complaints, or propaganda campaigns rather. And how do you differentiate?

Dude, like that’s the whole point of the challenge here. You yourself talked about the billions of people and how mistakes are made because so much of this is automated. But then you were misleadingly claiming that this info was taken down over demands from the government (which Zuckerberg clearly denied multiple times), and for you to then wrap back around to “but you gotta take down misinformation and lies and propaganda campaigns” is one hell of a swing.

But, as I said, it does lead to Zuck explaining how confidence levels matter, and how where you set those levels will cover both how much “bad” content gets removed, but also how much is left up and how much innocent content gets accidentally caught:

Zuck: Okay, you have some classifier that’s it’s trying to find say like drug content, right? People decide okay, it’s like the opioid epidemic is a big deal, we need to do a better job of cracking down on drugs and drug sales. Right, I don’t I don’t want people dealing drugs on our networks.

So we build a bunch of systems that basically go out and try to automate finding people who are who are dealing with dealing drugs. And then you basically have this question, which is how precise do you want to set the classifier? So do you want to make it so that the system needs to be 99% sure that someone is dealing drugs before taking them down? Do you want to to be 90% confident? 80% confident?

And then those correspond to amounts of… I guess the the statistics term would be “recall.” What percent of the bad stuff are you finding? So if you require 99% confidence then maybe you only actually end up taking down 20% of the bad content. Whereas if you reduce it and you say, okay, we’re only going to require 90% confidence now maybe you can take down 60% of the bad content.

But let’s say you say, no we really need to find everyone who’s doing this bad thing… and it doesn’t need to be as as severe as as dealing drugs. It could just be um I mean it could be any any kind of content of uh any kind of category of harmful content. You start getting to some of these classifiers might have you know 80, 85% Precision in order to get 90% of the bad stuff down.

But the problem is if you’re at, you know, 90% precision that means one out of 10 things that the classifier takes down is not actually problematic. And if you filter… if you if you kind of multiply that across the billions of people who use our services every day that is millions and millions of posts that are basically being taken down that are innocent.

And upon review we’re going to look at and be like this is ridiculous that this thing got taken down. Which, I mean, I think you’ve had that experience and we’ve talked about this for for a bunch of stuff over time.

But it really just comes down to this question of where do you want to set the classifiers so one of the things that we’re going to do is basically set them to… require more confidence. Which is this trade-off.

It’s going to mean that we will maybe take down a smaller amount of the harmful content. But it will also mean that we’ll dramatically reduce the amount of people who whose accounts were taken off for a mistake, which is just a terrible experience.

And that’s all a good and fascinating fundamental explanation of why the Masnick Impossibility Theorem remains in effect. There are always going to be different kinds of false positives and false negatives, and that’s going to always happen because of how you set the confidence levels of the classifiers.

Zuck could have explained that many of the other things that Rogan was whining about regarding the “suppression” of content around COVID (which, again, everyone but Rogan has admitted was based on Facebook’s own decision-making, not the US government), was quite often a similar sort of situation, where the confidence levels on the classifiers may have caught information it shouldn’t have, but which the company (at the time) felt had to be set at that level to make sure enough of the “bad” content (which Rogan himself says they should take down) gets caught.

But there is no recognition of how this part of the conversation impacts the earlier conversation at all.

There’s more in there, but this post is already insanely long, so I’ll close out with this: as mentioned in my opening, Donald Trump directly threatened to throw Zuck in prison for the rest of his life if Facebook didn’t moderate the way he wanted. And just a couple months ago, FCC Commissioner (soon to be FCC chair) Brendan Carr threatened Meta that if it kept on fact-checking stories in a way Carr didn’t like, he would try to remove Meta’s Section 230 protections in response.

None of that came up in this discussion. The only “government pressure” that Zuck talks about is from the Biden admin with “cursing,” which he readily admits they weren’t intimidated by.

So we have Biden officials who were, perhaps, mean, but not so threatening that Meta felt the need to bow down to them. And then we have Trump himself and leading members of his incoming administration who sent direct and obvious threats, which Zuck almost immediately bowed down to and caved.

And yet Rogan (and much of the media covering this podcast) claims he “revealed” how the Biden admin violated the First Amendment. Hell, the NY Post even ran an editorial pretending that Zuck didn’t go far enough because he didn’t reveal all of this in time for the Murthy case. And that’s only because the author doesn’t realize he literally is talking about the documents in the Murthy case.

The real story here is that Zuckerberg caved to Trump’s threats and felt fine pushing back on the Biden admin. Rogan at one point rants about how Trump will now protect Zuck because Trump “uniquely has felt the impact of not being able to have free speech.” That seems particularly ironic given the real story: Zuckerberg caved to Trump’s threats while pushing back on the Biden admin.

Zuckerberg knew how this would play to Rogan and Rogan’s audience, and he got exactly what he needed out of it. But the reality is that all of this is Zuck caving to threats from Trump and Trump officials, while feeling no coercion from the Biden admin. As social media continues to grapple with content moderation challenges, it would be nice if leaders like Zuckerberg were actually transparent about the real pressures they face, rather than fueling misleading narratives.

But that’s not the world we live in.

Strip away all the spin and misdirection, and the truth is inescapable: Zuckerberg folded like a cheap suit in the face of direct threats from Trump and his lackeys, while barely batting an eye at some sternly worded emails from Biden officials.

And that’s my fact check.

Filed Under: 1st amendment, brendan carr, coercion, content moderation, donald trump, fact checking, free speech, jawboning, joe biden, joe rogan, mark zuckerberg, podcast, rob flaherty
Companies: facebook, meta

Jawboning In Plain Sight: The Unconstitutional Censorship Tolerated By The DMCA

from the about-time-we-noticed dept

For better or worse, jawboning has been a hot topic recently, and it’s unlikely that interest will fade any time soon. Jawboning, in broad strokes, is when the government pressures a third party to make that third party chill the speech of another instead of going after the speech directly. Because the First Amendment says that the government cannot go after speech directly, this approach can at first seem to be the “one easy trick” for the government to try to affect the speech it wants to affect so that it could get away with it constitutionally. But as the Supreme Court reminded earlier this year in NRA v. Vullo, it’s not actually constitutional to try this sort of end-run around the First Amendment. Pressuring an intermediary to have it punish someone else’s speech is no better than trying to punish it directly.

True, not every accusation of “jawboning!” has been legitimate; Internet intermediaries are entitled to make their own decisions about what user expression to facilitate or remove. But when user expression gets removed, and it has not been the result of the volitional choice of the platform, then there are reasons to be concerned about the constitutionality of whatever legal pressure on the intermediary that caused the removal.

Which is why there should be concern about Section 512 of the Digital Millennium Copyright Act and how it operates to force intermediaries to act against users and their speech, whether they would want to or not, and whether the targeted speech is wrongful or not. Because when resisting a takedown notice can cost them their safe harbor protection and potentially expose them to crippling liability, then the choice to acquiesce to the takedown demand is really no choice at all. Instead it’s jawboning: using law to force the third party to act against speech in order to avoid the constitutional protections the speech should have enjoyed.

This dynamic is what this white paper I’ve written with the support of the R Street Institute explores: how the DMCA, as currently written and interpreted, creates a jawboning problem for online speech. It looks at the 512(a) and (c) safe harbors in particular, and the role that takedown notices have in forcing the elimination of user expression and, in an increasing number of cases, users too, all without due process. It notes how the DMCA as currently drafted and interpreted allows and even encourages using the DMCA’s takedown notice system as a tool to censor, such as through the toothlessness way Section 512(f) has been construed and the expansive way the termination provision of 512(i) has been.

Importantly, the paper does not suggest just trashing the DMCA, because statutory protection of Internet intermediaries is critically important. But it suggests that this protection should be more durable and reliable and not come at the expense of the very user speech statutory protection is necessary to foster. And it points out that the true culprit here may be copyright law itself and the extremely expansive doctrines of secondary liability that courts have taken upon themselves to write into the copyright statute. Because the problem with jawboning is that there is legal pressure on an intermediary, and this is undo legal pressure on them that makes intermediaries vulnerable to being coopted to work against the speech they exist, and we all need them to exist, to facilitate.

Of course, the question could fairly be asked, “Why now?” After all, the DMCA has been working its unconstitutional way for a quarter of a century, and we’ve been tolerating it. But tolerating the intolerable does not make it tolerable. Even though the DMCA has been doing its jawboning business all this time does not mean there is no exigent Constitutional problem demanding attention. It just means it’s time to take notice and finally do something about it, especially while there is such attention being given to other ways the government is tempted to affect online speech with similar intermediary pressure.

Furthermore, the DMCA’s jawboning problem has gotten worse over time: while as originally written the law has issues, court cases that have followed, particularly with regard to 512(f) and (i), as well as secondary liability, have exacerbated the statute’s inherent flaws. Meanwhile, the Supreme Court’s decisions in Vullo, Moody, and Murthy have helped provide a contemporary framework for recognizing and responding jawboning, and those decisions only came out this year. This paper now applies them to a problem that has long been brewing.

And, in any case, better late than never, especially as long as First Amendment rights remain threatened.

Filed Under: 1st amendment, censorship, copyright, dmca, dmca 512, free speech, jawboning, notice and takedown

Zuckerberg’s Spineless Surrender: Rehashing Old News To Enable False GOP Narratives

from the the-layers-of-wrongness-we-need-to-unpeel dept

Two bits of news came out of the letter Mark Zuckerberg sent to Rep. Jim Jordan this week (and how people responded to it), neither of which are what you’re likely to have heard about. First, Donald Trump seems to be accusing himself of rigging the 2020 election against himself.

And, second, Mark Zuckerberg has absolutely no spine when it comes to Republican pressure on Meta’s moderation practices. He falsely plays into their fundamentally misleading framing, all to win some temporary political favors by immediately caving to pressure from the GOP.

You may have seen a bunch of headlines in the past couple of days claiming that Mark Zuckerberg “admitted” that the Biden White House pressured him about “censoring” content and he wished he’d stood up to them more. It got plenty of coverage. Unfortunately, almost none of that coverage is accurately reporting what happened, what’s new, and what was actually said.

The reality is pretty straightforward: Mark Zuckerberg folded like a cheap card table, facing coercive pressure from Rep. Jim Jordan to modify Meta’s moderation practices. What he says misleadingly plays into Jordan’s mendaciously misleading campaign. In short, Zuckerberg’s claim that he would stand up to government pressure on moderation is undermined by the fact that he’s revealing this literally while caving to government pressure on moderation.

First, it’s necessary to understand the history. It’s no secret that the White House sought to persuade social media companies to adjust their content moderation practices. They said so publicly. Hell, there was just a big, giant, massive Supreme Court case about that, where the details of government requests to social media were on full display.

But, as the Supreme Court Justices themselves made clear during the oral arguments, the White House reaching out to media providers and trying to persuade them on editorial decisions is nothing new, nor is it problematic. The only thing that matters is if the government uses coercive techniques, in which it threatened the company or punished the company if it failed to comply.

Justices Kavanaugh and Kagan were talking about this during the oral arguments:

JUSTICE KAVANAUGH: You’re speaking on behalf of the United States. Again, my experience is the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.

[….]

JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.

You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.

I mean, this happens literally thousands of times a day in the federal government.

And just the fact that the Supreme Court did not see any evidence of this being coercive should say something.

Nothing in what Zuckerberg said changes any of that. He simply repeats what was already known and already public: that, yes, White House officials sought to persuade Meta in how it handled some moderation elements. Much of that pressure was public, and even the pressure that was private has been revealed before.

Remember, Jim Jordan has spent the last couple of years weaponizing the House Judiciary Committee to misleadingly claim that the government was “weaponized” to suppress conservative speech. He’s sent dozens upon dozens of subpoenas, almost all of which misleadingly demand responses or data based on his false belief that basic, fundamental trust & safety work is somehow an attack on free speech rights.

But make no mistake about Jordan’s end goal here: it is to prevent websites from ever doing anything to try to counter the spread of disinformation. We’re not even talking about removing or blocking content. He doesn’t want there to be any effort to fact check or debunk nonsense. And that’s because the party that he is a part of is the largest producer and purveyor of complete and utter bullshit. And having people point that out is seen as an attack.

So Jordan has framed any attempt to refute nonsense as “an attack on free speech.” Tragically, much of the media (and plenty of tech execs) have fallen into this trap and accepted Jordan’s framing.

Finally, that brings us to Zuckerberg’s letter from this week. In it, he admits (again) what has been widely known and widely reported on, and was central to the Murthy v. Missouri Supreme Court case: that some people in the White House sought to persuade Meta to take Covid misinfo more seriously.

In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree. Ultimately, it was our decision whether or not to take content down, and we own our decisions, including COVID-19-related changes we made to our enforcement in the wake of this pressure. I believe the government pressure was wrong, and I regret that we were not more outspoken about it. I also think we made some choices that, with the benefit of hindsight and new information, we wouldn’t make today. Like I said to our teams at the time, I feel strongly that we should not compromise our content standards due to pressure from any Administration in either direction and we’re ready to push back if something like this happens again.

So what is actually revealed here? Literally nothing new at all. It was already widely reported that the White House tried to persuade Meta to be more responsive. And there were reasons for this. People were dying from Covid, and internal documents show that Zuckerberg himself was hoping that Facebook would be helpful in getting people vaccinated. But the platform was being bombarded with conspiracy theories, lies, and nonsense that was misleading people into putting lives at risk.

So, yes, of course the White House would reach out to Meta and suggest that the platform should do better in stopping the flood of misleading, dangerous info. None of that should be revelatory or even noteworthy.

And if you read what Zuckerberg says here, he still says that they didn’t do anything because of pressure from the White House: “Ultimately, it was our decision whether or not to take content down, and we own our decision, including COVID-19-related changes we made to our enforcement…”

But then he says, “I believe the government pressure was wrong, and I regret that we were not more outspoken about it.”

And what does that even mean? First of all, Meta was pretty fucking outspoken. When Joe Biden accused Meta of “killing people,” Meta went all out in calling that claim crazy. They said that the Biden administration was “looking for scapegoats for missing their vaccine goals” and “we will not be distracted by accusations which aren’t supported by the facts.”

So, what’s new here? It was widely known that the White House wanted Meta to be more responsible about Covid and vaccine misinfo. They said so publicly and privately. The private emails were widely reported on and subject to a landmark Supreme Court case that was just decided less than two months ago. None of that is new.

Zuckerberg also says that they made their own decisions and it wasn’t due to White House pressure, which confirms what was said during the Supreme Court case.

The only “new” thing here is Zuck suggesting he regrets not being more aggressive in… what…? In making sure more people saw misinformation that might lead them to make bad decisions and get sick and possibly die? And again, it’s not even that Meta didn’t push back. They pushed back hard.

And yet, Jim Jordan and the House Judiciary are claiming that this was some big revelation:

So, again, neither of the first two points are new or even meaningful. It was public knowledge that the White House spoke to Meta. And, of course Meta moderated (not censored) the speech of Americans, because those Americans violated Meta’s policies. And, as a private entity, they’re free to do that. That’s American freedom, something Jim Jordan seems unable to comprehend.

Regarding the Hunter Biden laptop story, that’s the next paragraph of Zuckerberg’s letter:

In a separate situation, the FBI warned us about a potential Russian disinformation operation about the Biden family and Burisma in the lead up to the 2020 election. That fall, when we saw a New York Post story reporting on corruption allegations involving then-Democratic presidential nominee Joe Biden’s family, we sent that story to fact-checkers for review and temporarily demoted it while waiting for a reply. It’s since been made clear that the reporting was not Russian disinformation, and in retrospect, we shouldn’t have demoted the story. We’ve changed our policies and processes to make sure this doesn’t happen again for instance, we no longer temporarily demote things in the U.S. while waiting for fact-checkers.

Again, literally nothing in this is new. All of this was known at the time. Indeed, Meta admitted it at the time and admitted that it had probably been too quick to limit the spread of the story (just as Twitter had done, admitting the very next day that the policy was a bad one and needed to change). We’ve covered all this in great detail before.

Furthermore, Zuckerberg said this exact same thing on Joe Rogan two years ago. This also led people to falsely claim that he admitted that they blocked the spreading of that NY Post story due to pressure from the White House, even though he said no such thing.

Both times, he said that the FBI gave general warnings about “hack and leak” operations that the Russians were working on, which is no surprise given that the Russians did exactly that during the 2016 election in releasing the DNC emails. The FBI (unsurprisingly!) also said that there were a number of potential targets, including Hunter Biden. And that was also obvious. Anyone in the President’s family and political circle would be obvious targets. At no point has anyone suggested that the FBI said that they should suppress this particular story.

And, remember, the original Hunter Biden story was weakly sourced. Multiple news organizations, including Fox News, had turned down the story. That was because there were all sorts of questions about its legitimacy. And given what had happened in the past, it seemed wise to be cautious.

Indeed, these days Republicans seem oddly quiet about news organizations still holding back on reporting on the documents that were hacked from top Republicans like Roger Stone by the Iranians in this election cycle. Is Jim Jordan going to accuse companies of illegally interfering in the election because they won’t publish those documents that are embarrassing to Trump? Why the silence Jim? Oh right.

Even more to the point, at the time of that NY Post story, the Trump administration was in charge. It was October of 2020, a month before the 2020 election. So, this “truth” from Donald Trump is absolutely insane, because he appears to be accusing himself of “rigging” the election against himself:

If you can’t see that, it’s Donald Trump posting on Truth Social:

“Zuckerberg admits that the White House pushed to SUPPRESS HUNTER BIDEN LAPTOP STORY (& much more!). IN OTHER WORDS, THE 2020 PRESIDENTIAL ELECTION WAS RIGGED. FoxNews, New York Post, Rep. Laurel Lee, House Judiciary Committee.

Again, that is Trump saying “the White House” in 2020 “rigged” the Presidential election. So far, the only reporter I’ve seen call this out is Philip Bump at the Washington Post. This is Trump being so confused, he’s accusing himself of rigging the election.

Finally, Zuckerberg’s letter concludes with even more nonsense.

Apart from content moderation, I want to address the contributions I made during the last presidential cycle to support electoral infrastructure. The idea here was to make sure local election jurisdictions across the country had the resources they needed to help people vote safely during a global pandemic. I made these contributions through the Chan Zuckerberg Initiative. They were designed to be non-partisan spread across urban, rural, and suburban communities. Still, despite the analyses I’ve seen showing otherwise, I know that some people believe this work benefited one party over the other. My goal is to be neutral and not play a role one way or another or to even appear to be playing a role. So I don’t plan on making a similar contribution this cycle.

Why is he even bringing up his personal donations if this is about Meta? And, furthermore, is he really saying that he won’t do any more donations simply because “some people believe” that donations for safe voting benefit one party or another?

This is the most spineless response to a mendacious, targeted campaign by a politician who is weaponizing the power of the government to pressure a media company over its editorial policies. And Zuck folds like a cheap card table. And it’s doubly ironic, because part of that folding is claiming he won’t fold again (something he didn’t even do in the first place, but is doing now).

Oh, and of course, Elon jumps in to say this “sounds like a First Amendment violation.”

Dude, the Supreme Court literally just covered this in a case that talked quite a bit about your own site and said (pretty fucking clearly) that the record did not support any claim of a First Amendment violation.

All of this is stupid. That letter is written in the worst possible way. While it does not state anything fundamentally false, it makes it sound like things that have been public knowledge for years are somehow a new admission. It further directly enables idiots like Trump, Jordan, and Musk to claim false things about what happened. And, finally, it just contributes to a totally unnecessary news cycle.

The only actual “news” out of all this is (1) Zuckerberg has no spine and simply cannot stand up to bad faith government pressure to change his moderation practices when it comes from Republicans (he was fine doing so when it came from Democrats) and (2) Donald Trump has accused himself of rigging his own election against himself.

Zuckerberg has to know how this would play out. After all, the same misleading reaction happened two years ago when he went on Rogan’s podcast. The only reasonable interpretation of this is that he sent this letter, knowing how it would be interpreted, to give Jordan/Trump red meat to continue believing their own false and misleading claims in case Trump wins in the fall. It’s stupid and cynical, but that’s the kind of politics Meta seems to play these days.

Filed Under: 1st amendment, coercion, content moderation, covid, donald trump, elon musk, hunter biden, jawboning, jim jordan, mark zuckerberg, persuasion, vaccine disinformation
Companies: facebook, meta