Over the past week, more “Twitter Files” have rolled out that show how the FBI tried to control the flow of information on the platform.
In Part 6, independent journalist Matt Taibbi described the FBI’s contact with Twitter over the past few years as “constant and pervasive,” going so far as to call Twitter a “subsidiary” of the FBI. In Part 7, The Free Press’s Michael Shellenberger provided evidence suggesting that the FBI’s and the Department of Homeland Security’s repeated warnings to Twitter about foreign election interference led the company to suppress the Hunter Biden laptop story.
Some claim these disclosures prove Twitter was an accomplice in federal agencies’ politically motivated attempts to silence conservative voices. As Ross Barkan noted in The Nation, other outlets have ignored the Twitter Files or dismissed the revelations as unremarkable, showing nothing more than the government’s good-faith efforts to protect election integrity.
But what the Twitter Files show should concern civil libertarians of all stripes, no matter their politics. The revelations remind us that we need to keep a close eye on Uncle Sam’s relationship with social media platforms and remain wary of attempts by the government to use its power and influence to pressure platforms to do what it constitutionally cannot: censor lawful speech. After reviewing the files closely, here’s what we think are the most important free speech questions they raise.
What do we know about the frequency of the U.S. government’s involvement with Twitter?
It was, indeed, constant.
The Twitter Files show the FBI, DHS, and other federal agencies have had regular contacts with Twitter since as early as 2018 concerning alleged misinformation on the platform. Monthly meetings between Twitter and federal law enforcement and intelligence agencies apparently turned into weekly meetings ahead of the 2020 election. These agencies also teamed up with nongovernmental organizations, like the Election Integrity Partnership and the Center for Internet Security, to monitor what people were saying online and to urge Twitter to take action against certain users and content.
The Twitter Files show the FBI, DHS, and other federal agencies have had regular contacts with Twitter since as early as 2018 concerning alleged misinformation on the platform.
Part 6 of the Twitter Files reveals FBI communications to Twitter that flagged tweets containing purported election-related misinformation. The FBI — or its search algorithms — appeared to have a low threshold for “misinformation,” flagging even tweets from low-follower accounts that were obvious jokes, such as one user’s tongue-in-cheek get-out-the-vote effort: “I want to remind republicans to vote tomorrow, Wednesday November 9.” Twitter users on both sides of the political aisle posted versions of this gag: Another user tweeted on Election Day 2020, “Americans, Vote today. Democrats you vote Wednesday 9th.”
You can probably count on zero hands the number of voters who went to the polls a day late because of these tweets.
And the FBI wasn’t just flagging content for Twitter in hopes the company would review it. An email from just last month shows the FBI planning to direct Twitter to preserve evidence of user information and activity for a list of accounts suspected of spreading election-related misinformation, “pending the issuance of legal process.” The agency also requested the users’ location information from Twitter.
These revelations are concerning given that the First Amendment generally protects false speech, with very limited exceptions — like fraud and defamation. We’ve detailed the problems with government regulation of “misinformation,” which is prone to partisan abuse and can quickly get out of hand.
The seventh Twitter Files installment sheds more light on the interactions between the FBI and Twitter, highlighting a revolving door — Twitter hired many former FBI employees — and a level of information sharing that may further erode trust in these institutions. Among other things, Part 7 suggests the government’s zeal to combat foreign influence operations influenced Twitter’s decision to suppress the New York Post story about Hunter Biden’s laptop under its hacked materials policy — even though former Twitter Head of Trust and Safety Yoel Roth acknowledged it wasn’t “clearly violative” of the policy.
At the same time, Twitter executives sometimes felt uneasy about the agencies’ requests. After receiving questions from the FBI’s Foreign Intelligence Task Force about how Twitter determined the level of platform activity from “official propaganda actors,” Roth told colleagues he was not “comfortable with the Bureau (and by extension the [intelligence community]) demanding written answers.” To Twitter’s credit, it also resisted disturbing attempts by the government to obtain users’ private information outside of established legal channels.
Does the FBI’s relationship with Twitter violate the First Amendment?
Twitter user @Lexitollah had this to say after finding out the FBI flagged their account: “My thoughts initially include 1. Seems like prima facie 1A violation 2. Holy cow, me, an account with the reach of an amoeba 3. What else are they looking at?”
We understand this response, but this is where things get complicated.
Since Twitter is a private company, the First Amendment doesn’t apply to its independent decisions to take down posts or suspend users. However, if a private entity like Twitter were to become, for example, “pervasively entwined” with the government, it becomes bound by the same constitutional limits that apply to state actors. When a private actor succumbs to the government’s coercive authority, a First Amendment claim may lie against the government as well. But those are high bars, which aren’t met simply by Twitter voluntarily taking action on some content to which its attention is directed by government agencies.
Although the First Amendment prohibits the government from coercing private actors to censor speech on its behalf, suggestions and FYIs are not necessarily the same as coercion and threats. Absent more, a government agency telling Twitter that certain content may violate its terms of service likely isn’t coercive in a way that violates Twitter’s or its users’ First Amendment rights — even when the agency’s desired outcome is obvious and might significantly influence the platform’s decisions. (For more on this, check out former FIRE President David French’s piece in The Dispatch.)
Of course, it’s impossible to know whether the government’s interactions with Twitter violate the First Amendment without seeing them. We don’t have all of the communications between Twitter and the government. We only have those that Shellenberger, Taibbi, and other journalists covering the Twitter Files have highlighted.
Complete transparency is vitally important. It would be ideal if Twitter made public all communications it receives from government agencies or officials seeking removal of content or action against users. We can’t trust the government to respect constitutional limits on its authority when no one is watching.
Did the FBI pay Twitter to censor certain accounts?
In one of the final tweets of his long Twitter thread, Shellenberger strongly implies that Twitter profited off of its relationship with the FBI and censored the Hunter Biden story as a result.
The FBI pushed back on Shellenberger’s insinuation of impropriety, telling Fox News earlier this week the payments were “reimbursement” for the “reasonable costs and expenses associated with their response to a legal process … for complying with legal requests, and a standard procedure.”
Cries of “cash for censorship!” do appear unfounded, as Shellenberger’s tweet doesn’t show the FBI paying Twitter to remove content. The screenshotted internal Twitter email refers to a “reimbursement program for our legal process response from the FBI.” Twitter’s guidelines for law enforcement state that “Twitter may seek reimbursement for costs associated with information produced pursuant to legal process and as permitted by law (e.g., under 18 U.S.C. §2706).”
The cited statute is the Stored Communications Act, which governs when electronic communications and/or remote computing services like Twitter can disclose contents of communications or user records pertaining to them. The act specifies when and under what legal processes government entities can compel disclosures, and it requires the government to reimburse the service for costs of retrieving the information, including “any costs due to necessary disruption of normal operations.”
By seeking reimbursement, Twitter appears to have operated under a provision of federal law, not a cash-for-censorship program.
How concerning is the federal government’s relationship with Twitter?
Simply put: Very.
FIRE has repeatedly voiced concerns about “jawboning,” or the government pressuring private actors to do what the First Amendment forbids it from doing directly. That pressure violates the spirit — and, in some cases, the letter — of the First Amendment. And the FBI surely knows that persistent “requests” backed by the weight of a federal law enforcement agency may feel more like demands to the private actors receiving them. As the Twitter Files show, the government has neither the wisdom, nor the skill, nor the technology to authoritatively separate truth from falsity — much less understand a joke.
FIRE has repeatedly voiced concerns about “jawboning,” or the government pressuring private actors to do what the First Amendment forbids it from doing directly.
For instance, the FBI flagged the account of @ClaireFosterPHD, who claimed she was a ballot counter, as a violation of Twitter’s terms of service. Her offense? She joked in an Election Day 2020 post that “For every negative comment on this post, I’m adding another vote for the democrats.”
When Taibbi told her the FBI had taken interest in her account, she replied: “Anyone who cannot discern obvious satire from reality has no place making decisions for others or working for the feds.”
And the examples of alarming FBI behavior don’t stop there.
Shellenberger documents how an FBI supervisory special agent named Elvis Chan wasn’t above trying to persuade Twitter’s Roth to share Twitter data “outside the normal search warrant process.” Roth, to his credit, pushed back. In a draft email from Jan. 7, 2020, he told Chan that Twitter wants “to be good partners to government and help combat our shared threats – but the best path for NSA, or any part of government, to request information about Twitter users or their content is in accordance with valid legal process.”
And that wasn’t the government’s only attempt to obtain users’ private information outside of established legal channels.
The pressure to cave to government requests appears to have been intense. On Jan. 2, 2020, a Twitter executive emailed Roth to say: “We have seen a sustained (if uncoordinated) effort by the [intelligence community] to push us to share more information and change our API policies. They are probing and pushing everywhere they can (including by whispering to congressional staff).” After receiving questions from the FBI’s Foreign Intelligence Task Force about how Twitter determined the level of platform activity from “official propaganda actors,” Roth told colleagues he was not “comfortable with the Bureau (and by extension the [intelligence community]) demanding written answers.”
And that pressure continued into this year. Shellenberger reports on an Aug. 25 email in which Twitter executives prepare for a Sept. 6 meeting with the FBI. In the email, an executive says the FBI’s goal “in the meeting is to convince us to produce on more FBI EDRs.” (According to Twitter’s guidelines for law enforcement, an EDR is an emergency disclosure request, which enables law enforcement to request account information from Twitter if “there is an exigent emergency involving a danger of death or serious physical injury to a person.”) The email notes that the FBI “repeatedly emphasized Twitter’s lower level of compliance in comparison with other platforms” and that the FBI is “genuinely baffled and frustrated that their ‘rate of success’ (as they say) is so low at Twitter.”
Even if the FBI stayed just within legal boundaries, its pressure tactics are unacceptable. When you add up the FBI’s constant communication with Twitter, its regular content flags, and its requests to circumvent standard legal processes, you get a picture of a federal agency putting the screws to a private actor to do its bidding.
The latest Twitter Files may not show collusion between Twitter and the FBI, but the bureau’s actions should send a sharp chill through every American.