Twitter sues Texas

Yesterday we talked in part about how Twitter is taking a stand against India; today let’s look at a battle the company is waging closer to home.

Two months ago yesterday, Twitter permanently removed the @realdonaldtrump account from the network. In the wake of the January 6 Capitol attacks, Facebook acted first to suspend the president. A few days after Twitter did the same, YouTube suspended Trump as well. It was also during this period that multiple platforms announced that they had stopped providing service to right-wing social network Parler, resulting in that company losing its hosting through Amazon Web Services and its availability on Apple’s App Store.

To Republicans, this cascade of deplatforming offered the latest evidence that Big Tech is out to get them. It also provided an opportunity for conservative elected officials to fight tech platforms in the courts, alleging that Trump and the Parler executives’ rights may have been violated when they were suspended or banned from various internet services.

One person who took this opportunity was Ken Paxton, the Republican attorney general of Texas, whose name increasingly appears in lawsuits targeting Big Tech. (Paxton has also himself been under indictment for more than five years, in a long-delayed securities fraud case.)

On January 13, in Trump’s final days of office, Paxton issued an order known as a civil investigative demand to Amazon, Apple, Facebook, Google and Twitter. The order asked the companies to produce a wide variety of documents, including their terms of service, content moderation policies, and any communications related to Parler, whether internal deliberations or messages with other platforms.

No crime was alleged, but it’s easy to imagine Paxton making hay out of anything he finds on his fishing expedition. In a statement announcing this move, Paxton warned that if left unchecked, Americans might suffer deplatforming on a massive scale.

“The seemingly coordinated de-platforming of the President of the United States and several leading voices not only chills free speech, it wholly silences those whose speech and political beliefs do not align with leaders of Big Tech companies,” Paxton said. “Every American should be concerned about this large-scale silencing and the effects it will have on the future of free speech.”

Of course, if you’re one of the platforms under threat here, it’s fairly easy to reverse Paxton’s logic. A coordinated effort to threaten platforms with legal action for enforcing their terms of service when such actions affect Republicans could also have a chilling effect on platforms’ own speech rights.

Until Monday, though, none of the platforms had attempted to make that case in court. But then Twitter — by far the smallest company of those targeted — decided it wanted to fight. The company filed a complaint against Paxton in US District Court in an effort to bring Texas’ investigation to an end. Here’s Benjamin Din in Politico:

The social media giant said in its filing that the investigation requested by Paxton was an abuse of his power and a retaliatory action over Twitter’s decision to permanently suspend Donald Trump from the platform, which was the former president’s preferred method of communication with his supporters.

“Twitter seeks to stop AG Paxton from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights,” the company wrote.

Paxton’s office has so far had no comment on the suit. Nor have any other platforms he has targeted commented on Twitter’s action, or signaled that they might join it.

When I asked Twitter why it had picked this fight, the company told me that the lawsuit is an extension of its commitment to free expression.

“The First Amendment protects everyone’s right to free speech, including private businesses,” a spokeswoman told me. “In this case, the Texas Attorney General is misusing the powers of his office to infringe on Twitter’s First Amendment rights and attempt to silence free speech. As we’ve repeatedly stated, and recent research underscores, we enforce the Twitter rules judiciously and impartially across our service.”

Twitter noted that five years ago, Paxton weighed in on a similar investigative demand involving Exxon and the Massachusetts attorney general — and took the opposite position. Massachusetts was investigating whether Exxon’s marketing of products derived from fossil fuels violated consumer protections laws; Paxton called the move an overreach.

“It is one thing to use the legal system to pursue public policy outcomes,” Paxton wrote in an amicus brief, “but it is quite another to use prosecutorial weapons to intimidate critics, silence free speech, or chill the robust exchange of ideas.”

Twitter said it tried to work with Paxton’s office to limit the scope of his document request; it filed the suit when they couldn’t come to terms.

Maybe at this point you’re dismissing this whole thing as a sideshow — one more tedious culture-war skirmish to emerge from the bitter end of the Trump administration. But increasingly it appears as if Republican elected officials will use all tools at their disposal to limit platforms’ ability to remove accounts that they see as bad actors.

It’s already happening in state legislatures across the country — and in some cases Democrats are leading the way. Here’s Anthony Izaguirre writing on Sunday for the Associated Press:

GOP politicians in roughly two dozen states have introduced bills that would allow for civil lawsuits against platforms for what they call the “censorship” of posts. Many protest the deletion of political and religious statements, according to the National Conference of State Legislatures. Democrats, who also have called for greater scrutiny of big tech, are sponsoring the same measures in at least two states. […]

The bills vary slightly but many allow for civil lawsuits if a social media user is censored over posts having to do with politics or religion, with some proposals allowing for damages of $75,000 for each blocked post. They would apply to companies with millions of users and carve out exemptions for posts that call for violence, entice criminal acts or other similar conduct.

Experts in constitutional law who were interviewed for the piece expressed skepticism that these laws would be upheld by courts, at least as long as Section 230 is law of the land. And it seems that it will remain in place after all: David McCabe, writing in the New York Times today, surveys the landscape and finds that enthusiasm for a full repeal — President Biden’s stated policy goal on the campaign trail — is waning into nothingness. Instead, lawmakers are pursuing a wide variety of laws that chip away at Section 230 protections while leaving basic liability protections for platforms mostly intact.

These new state laws could also be voided on First Amendment grounds, of course. (Some of them are really quite bad.) Twitter’s lawsuit against Paxton notably roots its argument in constitutional law rather than Section 230, presumably because it is sturdier ground on which to stand.

Still, it’s worth noting the sheer breadth of the legal challenges that platforms now face to their moderation rights, even if most of those challenges appear pretty shallow. I’m glad that Twitter is standing up so loudly against one of them — and I wonder when the other much larger platforms involved here might join them.

Elsewhere in Twitter: Head of product Kayvon Beykpour does a fun interview with Nilay Patel at The Verge. Beykpour gives a great answer to why the company was so slow to develop products for so long:

Churn in leadership is one. After a revolving door of heads of product, people stop taking any product strategy particularly seriously, because it’s like, okay, well, let’s wait until that strategy changes. And so I think there was a little bit... while no one would say that explicitly, there was this reticence to commit to long-term speculative bets, because it was rare for them to be able to be seen through.

Pushback

I made a mistake yesterday when I said that the proposed new powers for Australia’s new eSafety commissioner applied only to public posts; in fact, the proposal would apply to email and other private messages as well. One more reason to send it back for edits — and in the meantime, I’ve posted a correction to my original post.

The Ratio

Today in news that could affect public perception of the big tech companies.

🔃 Trending sideways: LinkedIn paused new signups in China while the company reviews its compliance with local laws. The Microsoft-owned company has 52 million users in the country; it’s unclear what laws may have changed that prompted the review. (Brody Ford / Bloomberg)

Governing

⭐ President Biden will nominate Lina Kahn to the Federal Trade Commission, in a serious escalation of antitrust pressure on big tech companies. Kahn came to fame after writing a groundbreaking paper about how Amazon’s pricing practices could violate antitrust law. Ryan Lizza broke the news at Politico:

Khan would be one of three Democratic commissioners at the agency, which oversees privacy, data security and some antitrust enforcement, at a time when it’s faced sharp criticism for not doing enough to police major tech firms like Google and Facebook over their privacy practices and past mergers. At 32, she’d also be the youngest FTC commissioner ever.

Her bona fides: Khan served as an aide to the House Judiciary antitrust subcommittee’s probe into antitrust and major tech platforms including Amazon, Apple, Google and Facebook. As part of the 16-month investigation, Khan honed in on Google’s conduct in the online search market. Before that she was a fellow at the FTC and argued for the agency to adopt rules that would more clearly spell out when companies violate competition law.

A group of hackers gained access to live feeds for more than 150,000 surveillance cameras inside hospitals, companies, police departments, prisons and schools. The cameras were all linked to a platform operated by a startup called Verkada; hackers say they are trying to draw attention to the significant vulnerabilities that these mass surveillance systems can create. (William Turton / Bloomberg)

Apple faces a new privacy complaint in France alleging that iOS collects data without users’ permission. “According to the complaint, Apple may be violating Europe’s GDPR rules because it is collecting user data for ad tracking services without explicitly asking permission.”(Chris O’Brien / Sifted)

The Amazon union election in Alabama has been marked by the spread of conspiracy theories and a false Jeff Bezos sighting. Among other things, there is widespread fear that the election will be “rigged” one way or the other. (Spencer Soper and Matt Day / Bloomberg)

Related: President Biden’s support for the unionization effort appears to have galvanized the workers in Alabama. (Astead Herndon / New York Times)

How messaging app Line built a fact-checking program to counter misinformation in real time. Users can flag a message to a “Fact Checker” account that analyzes it for known keywords and phrases and directs them to fact checks from partners. (Andrew Deck and Vittoria Elliott / Rest of World)

Industry

⭐ A top Google ad executive left the company to found Neeva, an advertising-free search engine. Sridhar Ramaswamy, who left Google in 2018, just added another slide to Google’s “competition is just a click away” antitrust defense slide heck. Here’s Marty Swant at Forbes:

Neeva users will pay between $5 and $10 a month to get the search results they want rather than what advertisers want them to see. The challenge, obviously, is getting folks to pay for something they are used to getting for free. […]

The idea is getting traction. Neeva announced today that it raised an additional $40 million funding led by Greylock and Sequoia Capital. The round brings Neeva’s total funding to $77.5 million with a valuation of $300 million. The funding will be used to expand beyond the invitation-only alpha-testing they launched in June 2020 into a much wider Beta release this spring.

Meet the brands trying to cash in on Clubhouse. Sponsored rooms and cash giveaways are among the tactics brands are using in the time before Clubhouse launches monetization products. (Sheila Dang / Reuters)

Google will make it free for hotels to list their offerings in its travel vertical. It could help Google better compete as travel takes off again this year. (Curious: what antitrust implications are there for this, if any?) (Sarah Perez / TechCrunch)

Reels are coming to the core Facebook app in India. An opportunistic move in a country where TikTok is banned, giving competitors an opening. (Vikas SN / Economic Times)

Discord generated $130 million in revenue last year, up from nearly $45 million the year before, amid a surge in usage related to stay-at-home editors. Meanwhile, its monthly user base doubled to 140 million. (Sarah E. Needleman / Wall Street Journal)

A profile of Amy Peikoff, the chief policy officer at Parler. “On her blog, in interviews and on social media, she has described herself as a ‘Never Trumper,’ an atheist and a devotee of the late author Ayn Rand.” (William Turton / Bloomberg)

Apple will change the verb from “subscribe” to “follow” in its podcast app. The move came after research showed that 47 percent of people who don’t listen to podcasts believe that “subscribing” will cost them money (!). (James Cridland / Podnews)

Jack Dorsey said he would donate the proceeds from the sale of his first tweet as an NFT to charity. The Twitter CEO’s famous first tweet has attracted bids of up to $2.5 million. (Jay Peters / The Verge)

Those good tweets

Talk to me

Send me tips, comments, questions, and Ken Paxton burns: casey@platformer.news.