vijaya gadde – Techdirt (original) (raw)

Twitter’s Former Top Execs All Sue Elon Over Missing Severance

from the play-stupid-games,-win-stupid-prizes dept

It might not be the smartest idea to have Walter Isaacson trailing you and taking notes on your everyday moves when one of those moves is trying to breach the contract the top execs of the social media company you just overpaid for on a whim.

In his book on Musk, Isaacson talked about how Elon and his lawyer, Alex Spiro, worked together to plan a scheme to close the deal early and to fire the top execs at Twitter in the false belief that if they somehow fired them earlier they could claim it was for cause and avoid having to pay tens of millions of dollars in severance that was in their contracts.

The closing of the Twitter deal had been scheduled for that Friday. An orderly transition had been scripted for the opening of the stock market that morning. The money would transfer, the stock would be delisted, and Musk would be in control. That would permit Agrawal and his top Twitter deputies to collect severance and have their stock options vest.

But Musk decided that he did not want that. On the afternoon before the scheduled close he methodically planned a jiu-jitsu maneuver: He would force a fast close that night. If his lawyers and bankers timed everything right, he could fire Agrawal and other top Twitter executives “for cause” before their stock options could vest.

“There’s a 200-million differential in the cookie jar between closing tonight and doing it tomorrow morning,” he told me late Thursday afternoon in the war room as the plan unfolded.

At 4:12 p.m. Pacific time, once they had confirmation that the money had transferred, Musk pulled the trigger to close the deal. At precisely that moment, his assistant delivered letters of dismissal to Agrawal and his top three officers. Six minutes later, Musk’s top security officer came down to the second-floor conference room to say that all had been “exited” from the building and their access to email cut off.

The instant email cutoff was part of the plan. Agrawal had his letter of resignation, citing the change of control, ready to send. But when his Twitter email was cut off, it took him a few minutes to get the document into a Gmail message. By that point, he had already been fired by Musk.

“He tried to resign,” Musk said.

“But we beat him,” his gunslinging lawyer Alex Spiro replied

Turns out that’s maybe not a good thing to admit publicly?

Agrawal and three other top Twitter execs who were fired in that same move have now sued Elon for failing to pay their severance. And they’re using the Isaacson book as evidence. It’s useful as evidence of the intent here, but the underlying issue seems pretty undeniable that, based on their contracts, Musk couldn’t avoid paying these execs their severance. Musk just seems to think he could. But it appears the details show otherwise.

Kudos to the lawyer who wrote this rather cutting paragraph:

In fact, Musk and Spiro had not beaten anyone at anything. If anyone around Musk had been willing to tell him the truth, he would have learned that his scheme to deny Plaintiffs their contractual severance payments was a pointless effort that would not withstand legal scrutiny. ERISA protects Plaintiffs’ severance benefits. Under Twitter’s severance plans, if an eligible executive is terminated without cause following a change in control, they are entitled to severance benefits. Likewise, if an eligible executive resigns due to a change in their reporting structure, they are entitled to severance benefits. “Cause” under the severance plans is limited to extremely narrow circumstances, such as being convicted of a felony or committing “gross negligence” or “willful misconduct.” “Cause” is not “Board-approved business decisions that Musk dislikes” from the time before he owned the Company.

Now, it’s reasonable to argue that no one deserves as much severance as these packages offered, but that’s a wholly separate issue. The fact is these execs had their contracts. And Musk appears to have violated them, falsely thinking that if he fired them on Thursday evening instead of Friday morning (and claimed it was “for cause”) he wouldn’t have to pay.

But that’s not what the contracts appear to say. And, it’s not as if Musk had a good explanation of the “cause” part of “for cause.”

Because Musk decided he didn’t want to pay Plaintiffs’ severance benefits, he simply fired them without reason, then made up fake cause and appointed employees of his various companies to uphold his decision. He claimed in his termination letters that each Plaintiff committed “gross negligence” and “willful misconduct” without citing a single fact in support of this claim. Musk’s employees then spent a year trying to come up with facts to support his preordained conclusion, to no avail. Nonetheless, Defendants have persisted in their benefits denials over the past year, wrongfully withholding documents, needlessly prolonging any decisions, and generally playing out the ERISA administrative process for all it’s worth. This is the Musk playbook: to keep the money he owes other people, and force them to sue him. Even in defeat, Musk can impose delay, hassle, and expense on others less able to afford it.

In fact, the complaint details how the “cause” changed over time. Initially, Musk claimed they were fired for cause for “failure to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested [their] cooperation.” However, later on, when the former execs sought to have an administrator review their claims for severance, a Twitter employee denied them for a different reason:

Chapman also made the brief and conclusory claim that Plaintiffs committed gross negligence and willful misconduct by paying retention bonuses to Twitter employees, and made the brief and conclusory claim that Agrawal, Segal, and Gadde committed gross negligence due to the Company’s alleged corporate waste. Chapman’s denial letters made no attempt to address Musk’s claim in the termination letters that some of the Plaintiffs had failed to cooperate with an investigation within the meaning of subsection (g).

The former execs were then able to appeal the rejection of their claim, but (hilariously) it apparently went to a board made up of Tesla and SpaceX employees (what? why? how is that…?)

Plaintiffs directed their appeal to the committee, which purportedly was created by Musk and consists of Chapman, now identified as working for SpaceX, Brian Bjelde, another SpaceX employee, and Dhruv Batura, a former long-term Tesla employee now identified as working for X Corp.

Sounds very legit.

Unsurprisingly, this committee rejected the appeal. Hence the lawsuit. The complaint also notes that everything Musk complains about regarding retention bonuses and fees paid to law firms to help Twitter complete the purchase were approved by the board… the same board that was able to sell the company for $44 billion (a sound financial decision for them) only to watch Musk set fire to the valuation, as the lawsuit notes:

Plaintiffs’ management of the Company made Twitter extremely valuable, such that it was worth 44billion.Incontrast,underMusk’sleadershipsincetheacquisition,Twitter’svaluehasfallenprecipitously.MuskadmittedinMarch2023thatTwitter’svaluehadfallentoabout44 billion. In contrast, under Musk’s leadership since the acquisition, Twitter’s value has fallen precipitously. Musk admitted in March 2023 that Twitter’s value had fallen to about 44billion.Incontrast,underMusk’sleadershipsincetheacquisition,Twitter’svaluehasfallenprecipitously.MuskadmittedinMarch2023thatTwitter’svaluehadfallentoabout20 billion. And by the end of May 2023, Fidelity, which owns an equity stake in Twitter, had lowered its valuation of the Company to 15billion,approximatelyathirdoftheCompany’spriorvaluewhenPlaintiffsheldtheirleadershippositionsattheCompany.Bytheendof2023,FidelitylowereditsvaluationoftheCompanyevenfurther,toabout15 billion, approximately a third of the Company’s prior value when Plaintiffs held their leadership positions at the Company. By the end of 2023, Fidelity lowered its valuation of the Company even further, to about 15billion,approximatelyathirdoftheCompany’spriorvaluewhenPlaintiffsheldtheirleadershippositionsattheCompany.Bytheendof2023,FidelitylowereditsvaluationoftheCompanyevenfurther,toabout12.5 billion, approximately 28% of the Company’s prior value.

That’s just twisting the knife to remind Musk how terrible he’s been at managing the company.

There are a few other tidbits, including that Musk tried to get Vijaya Gadde fired months before he owned the company (as we’ve explained, contrary to the narrative, Gadde was one of the main reasons why Twitter took such a strong free speech stance.) Many idiots have claimed otherwise, but they have no idea what they’re talking about. And, as we’ve seen happen all too often, Elon believed the idiots over the facts and demanded Gadde be fired:

As early as April 2022, shortly after signing the Merger Agreement, but before he owned the company, Musk wanted Agrawal to terminate Gadde. On or about April 27, 2022, Musk, Agrawal, and former Twitter CEO Jack Dorsey joined a FaceTime call. Agrawal’s intention for the call was to discuss Musk’s vision for Twitter, and how they could align so that Agrawal could lead with an awareness of that vision over the next few months prior to the closing, while shareholder and regulatory approval was pending. Musk had no such intention. Within minutes of the start of the call, Musk directed Agrawal to terminate Gadde immediately. When Agrawal refused, Musk gave him a day to comply, telling him to text Musk confirmation of her firing.

Agrawal said that he would take what Musk had asked under consideration, but as CEO, he made his own decisions. Musk became aggressive and angrily repeated his orders. When Agrawal refused to fire Gadde, Musk told him that “we can’t work together” as a result.

This adds some interesting color to what was known before. During the lawsuit with Musk trying to get out of buying Twitter, it was known that Musk and Agrawal spoke in April, and that they’d had some sort of disagreement (this came out in the released text messages between Jack Dorsey and Musk). But it wasn’t clear why Musk was so annoyed by Agrawal. The implications, in the past, that there were differences of vision or technical plans for the company. But now we know it’s because Musk, in true Elon fashion, demanded someone he had no authority over fire someone based on a bunch of nonsense he fell for online. And Agrawal refused to do so.

The complaint also notes that the “committee” of Elon employees who reviewed the claim for severance refused to turn over the documents they supposedly reviewed to make the decision. In some cases, they claimed the documents were confidential, even though some of them were made public by Twitter itself when it sued Wachtell, the law firm that helped Twitter force Musk to complete the acquisition.

Incredibly, Defendants withheld from this production as confidential several documents that X Corp. publicly disclosed as exhibits to the Complaint it filed on July 5, 2023 in X Corp. v. Wachtell.

Not a good look, but fitting with Musk’s standard operating procedure of the rules not mattering for him.

Anyway, this is a strong case, and there’s a decent likelihood that Musk and Spiro’s “sneaky” plan to outwit these four execs from their promised severance is going to lead to him still having to pay the severance… and having to pay lawyers to defend this lawsuit.

Filed Under: alex spiro, elon musk, ned segal, parag agrawal, sean edgett, severance, vijaya gadde, walter isaacson
Companies: twitter, x

Elon Has To Pay The Legal Fees Of Former Execs He Fired

from the pay-up dept

Elon Musk really seems to hate paying legal bills (or, really, any bills), but now he’s got a few more to cover. Bloomberg reported earlier this week that Kathaleen McCormick, Chancellor of the Delaware Court of Chancery (who is quite familiar with Elon Musk and Twitter) has ruled that exTwitter has to cover the legal fees of former CEO Parag Agrawal and former legal boss Vijaya Gadde.

At issue was that their contracts required that the company would cover their legal fees, and that should have covered legal work that was associated with the company even after they were fired (mainly Gadde testifying before Congress).

Despite timely written demand along with documentation from Plaintiffs through their counsel, the Company has not advanced to Plaintiffs their Expenses actually and reasonably incurred related to the various Proceedings. Over two months after Plaintiffs initial written demand, the Company offered only a cursory acknowledgement of receipt, but still refused to acknowledge its obligations and to remit payment of any invoices. Defendant has breached the Agreements and contravened its Bylaws.

In response, exTwitter’s lawyers argued (and I’m paraphrasing) “hey, look, we’ll pay, but these fees are fucking crazy.” Its filing noted that other former Twitter execs who testified in the same Congressional hearing had bills closer to 100,000,butGadde’sbillswerearound100,000, but Gadde’s bills were around 100,000,butGadde’sbillswerearound1.1 million.

But… Chancellor McCormack basically said that the contract is the contract, and so Elon needs to pay:

After hearing arguments, McCormick noted Delaware courts lean in favor of granting executives’ request to have legal fees covered when tied to their actions on behalf of companies. She said she didn’t see any reason to deviate from the norm in the case.

“I have reviewed the amount in question, and although it is high and probably higher than most humans would like to pay, it’s not unreasonable,” she said.

Once again, it’s beginning to look like Elon’s attempt at being clever (according to the Walter Isaacson biography of Musk, he tried to conclude the takeover and fire the top execs a few hours earlier than planned in order to screw them out of money):

The closing of the Twitter deal had been scheduled for that Friday. An orderly transition had been scripted for the opening of the stock market that morning. The money would transfer, the stock would be delisted, and Musk would be in control. That would permit Agrawal and his top Twitter deputies to collect severance and have their stock options vest.

But Musk decided that he did not want that. On the afternoon before the scheduled close he methodically planned a jiu-jitsu maneuver: He would force a fast close that night. If his lawyers and bankers timed everything right, he could fire Agrawal and other top Twitter executives “for cause” before their stock options could vest.

Instead, he went ultra asshole and was gleeful about it:

The instant email cutoff was part of the plan. Agrawal had his letter of resignation, citing the change of control, ready to send. But when his Twitter email was cut off, it took him a few minutes to get the document into a Gmail message. By that point, he had already been fired by Musk.

“He tried to resign,” Musk said.

“But we beat him,” his gunslinging lawyer Alex Spiro replied.

Of course, sometimes being an asshole has a price.

Filed Under: elon musk, kathaleen mccormick, legal fees, parag agrawal, vijaya gadde
Companies: twitter, x

House Oversight Committee Wanted To Berate Twitter’s Old Management Over Hunter Biden’s Laptop; Instead, It Revealed Trump Censorship Attempts

from the about-that dept

I have a confession. While yesterday the House Oversight Committee took up six hours (sorta, as there was a big power outage in the middle) wasting everyone’s time with a hearing on “Twitter’s Role in Suppressing the Biden Laptop Story,” I chose not to watch it in real-time. Instead, afterwards I went back and watched the video at 3x speed (and skipped over the giant power outage part), meaning I was able to watch the whole thing in less than two hours. If you, too, wish to subject yourself to this abject nonsense, I highly recommend doing something similar. Though, a better option would be just not to waste your time.

Unfortunately, the panelists — four former Twitter employees — had neither option at hand and had to sit through all of the craziness. By this point, I’m kind of used to absolutely ridiculous hearings in Congress trying to “grill” tech execs over things. They have a familiar pattern. The elected officials engage in pure grandstanding, ironically deliberately designed to try to make clips of them go viral on the very social media they’re criticizing. But this one was even worse. Honestly, the four witnesses — former deputy general counsel James Baker, former legal chief Vijaya Gadde, former head of trust & safety Yoel Roth, and a former member of the safety policy team, Anika Collier Navaroli — barely had time to say anything. Almost all of the politicians used up most of their own 5 minutes on their own grandstanding.

To the extent that they asked any questions (and this was, tragically, mostly true on both sides of the aisle, with only a few limited exceptions), they asked misleading, confused questions, and when any of the witnesses tried to clarify, or to express anything even remotely approaching nuance, the elected officials would steamroll over them and move on.

Nothing in the hearing was about finding out anything.

Nothing in the hearing was about exploring the actual issues and tradeoffs around content moderation.

Many of the Republicans wanted to just complain that their own tweets weren’t given enough prominence on Twitter. It was embarrassing. On the Democratic side, many of the Representatives (rightly) called out that the whole hearing was stupid nonsense, but that didn’t stop a few of them from pushing their own questionable theories, including the suggestion from Rep. Raskin (whose comments were mostly good, including calling out how obviously ridiculous the same panel would be if they called Fox News to explain its editorial choices) that Twitter’s failure to stop January 6th from happening was illegal or Rep. Bush’s suggestion that social media should be nationalized. On the GOP side, you had Rep. Boebert suggest that the panelists had broken the law in exercising their 1st Amendment rights, and multiple other Reps. insist over and over again — even as the panelists highlighted the contention was blatantly false — that Twitter deliberately suppressed the Biden laptop story.

Of course, if you’ve read Techdirt, you already know what the Twitter files actually showed, which was that the decision to block the links to that one story for one day was a mistake, but had nothing to do with politics, or pressure from Joe Biden or the FBI. But the hearing was extremely short on facts from the Representatives, who just kept repeating false claim after false claim.

But… the biggest reveal was actually that the Donald Trump White House demanded that Twitter remove a tweet from Chrissy Tiegen which Trump felt insulted by. Remember, in the original Twitter Files, Matt Taibbi had insisted that the Trump White House sent takedown demands to Twitter, but in all of the Twitter files since then, no one (not Taibbi or any of the others who got access) have said anything about what Trump wanted taken down. Instead, it was Navaroli who talked about how the Trump White House had complained about this tweet, and demanded Twitter take it down.

That tweet was in response to Trump whining that after he signed a Criminal Justice Reform bill he didn’t get enough credit. In the short four tweet rant, Trump mentions “musician @johnlegend, and his filthy mouthed wife, are talking now about how great it is – but I didn’t see them around when we needed help getting it passed.” Tiegen then responded as seen above.

And it actually sounds like Twitter did the same thing it does with every note from anyone — government official or other — and reviewed the tweet against its policies. Apparently, there was some sort of policy that would take down tweets if there were three insults in a tweet, and so they had to analyze if “pussy ass bitch” was three insults or one giant insult (or two? I dunno). Either way, it was determined that it didn’t meet the three insult threshold and remained on the site.

Still, this certainly raises the question: in all of the “Twitter Files,” where is the release of the details about Trump getting his panties in a bunch and demanding that Tiegen’s tweet get taken down?

Now, I’m expecting that all the people in our comments who have insisted that the FBI highlighting tweets that might violate actual policies is a Constitutional violation will now admit that the former President they worship also violated the Constitution under their understanding of it… or, nah?

Speaking of the former President, Navaroli also revealed yet another way in which Twitter bent over backwards to protect Trump and other Republicans. She relayed the discussion over a tweet by Trump, in which he suggested that Congressional Representatives of color, with whom he had policy disagreements should “go back and help fix the totally broken and crime infested places from which they came.”

At the time, Twitter’s policies had a rule against attacking immigrants, and even called out the specific phrase “go back to where you came from,” as violating that policy. Navaroli discussed how she flagged that tweet as violating the policy, but was overruled by people higher up on the team. And, soon after that, the policy was changed to remove that phrase as an example of a violation.

Now, there are arguments that could be made for why that particular tweet, in context, might not have truly violated the policy. There are also pretty strong arguments for why it did. Reasonable people can disagree, and I would imagine that there was some level of debate within Twitter. But to make that call and then soon after delete the phrase from the policy certainly suggests going the extra step not to “censor conservatives” but to give them extra leeway even as they violated the site’s policies repeatedly.

The whole thing was as parade of nonsense, and I even heard from a Republican Congressional staffer afterwards complaining about how the whole thing completely backfired on Republicans. They set out to “prove” that Twitter conspired with the US deep state to censor the Hunter Biden laptop story. And, in the end, the witnesses quite effectively debunked each point of that, while instead the key takeaway was that Trump demanded a tweet insulting himself be taken down, and Twitter explicitly changed its rules to protect Trump after he violated the rules.

Just a total shitshow all around.

But, at least I got to watch it at 3x speed.

Filed Under: 1st amendment, chrissy tiegen, content moderation, donald trump, editorial discretion, fbi, grandstanding, house oversight committee, hunter biden laptop, james baker, james comer, lauren boebert, vijaya gadde, yoel roth
Companies: twitter

Elon Musk’s First Move Is To Fire The Person Most Responsible For Twitter’s Strong Free Speech Stance

from the not-a-great-start dept

Last night, Elon Musk closed his on-again, off-again, on-again deal to buy Twitter, and his very first order of business was to fire a bunch of top executives. This was not necessarily unexpected. When new owners come in, they will often clean house, and the text messages revealed as part of the lawsuit while Musk was trying to get out of the deal made it clear that Musk could not stand CEO Parag Agrawal. So it seemed obvious that Agrawal would be gone immediately, but Musk also fired (at least) the other top executives who know how the company works: CFO Ned Segal, head of legal and policy Vijaya Gadde, and General Counsel Sean Edgett. That’s not a great sign for an orderly transition, as those are the executives who understood Twitter’s business the best.

And while it’s no surprise that he fired Gadde (he had criticized her in an extremely misleading way back in April, leading to a barrage of harassment that he did nothing to stop), it still should be noted that this is a huge loss for free speech. I said as much on Twitter last night, and had hordes of people calling me every name you can imagine, but this is a point worth defending, even if (especially if?) clueless people want to attack me for it. I just ask that if the premise of this post makes you mad, at least read all the details, and respond to the actual points — not whatever simplistic narrative you think is true.

Gadde did more for free speech on the internet than almost anyone else I can think of. It is difficult to overstate how important she has been in protecting free speech over the past decade. This post will only brush the surface of some of what she’s done.

But first, let’s respond to the main criticism I received for pointing this out. Lots of people insist that she was “chief censor” and that she “banned the sitting President” or that she “interfered in the election by blocking the Hunter Biden story!” and other such claims. Someone even told me she “banned half the US.” All of these complaints misunderstand the nature of free speech, and how it actually works.

First, it should be noted that of all the mainstream social media platforms out there, Twitter was by far the most permissive and the most resistant to rules that would shut down accounts. It had a significantly lighter touch on moderation than Facebook, Instagram, YouTube, Snapchat and TikTok. Some of this predated her role at the company, but once she took over legal, she continued to make sure the company was far more open to user speech than nearly every other platform (and that even includes the various MAGA platforms that pretend to be about free speech but are quick to ban critics).

On top of that, she made sure that when content moderation did happen, it was based on a set of principles and policies. You can disagree with where she came down on those policies (and I often did!) but she and others at the company worked hard to make sure that they weren’t making decisions in an arbitrary fashion, but based on a policy. Indeed, this is where the whole Hunter Biden laptop story went wrong. As we’ve written a bunch of times, links to the NY Post story were blocked because of a belief that the story violated Twitter’s “hacked materials” policy. That policy had been in place for a while before the laptop story came out, and in fact we had criticized that policy specifically because it seemed clear that it could interfere with journalism in the public interest (and that had happened when Twitter banned an account for linking to leaked law enforcement documents — i.e., info that was embarrassing to cops, who tend to be more right wing than left wing, countering the narrative that Twitter only blocks pro-right wing info). Twitter eventually changed that policy, which was the right call. But, again, it shows that the company had a policy and enforced it against content that favored different political viewpoints. Indeed, not enforcing the same policy against the NY Post would have been an example of Twitter giving more leeway to conservatives than liberals.

Gadde also spent a lot of time trying to think through ways to make the site welcoming for more users without banning or shutting down accounts. She recognized that every decision had serious tradeoffs. If you allow too much abuse, harassment, and rule breaking, then that can actually work against speech by driving it away, and causing people to stay silent (you know, what the “cancel culture” crowd claims is “self-censorship”); but there’s also value in diverse viewpoints and a wide variety of opinions. She tended to default more towards allowing more speech than less, but knew that a free-for-all on a single site did not actually lead to more overall speech (which is why the few “free-for-all” sites are not very large).

This is part of the reason Twitter kept on experimenting with new methods of handling trust & safety that were less restrictive than banning people entirely. It was among the first, for example, to introduce fact checks and “more information” boxes. Ridiculously, tons of people claimed that those information boxes were censorship, when they were actually a perfect example of the “more speech” approach that Twitter tried to default to in most cases, allowing the company to leave up more speech.

And, contrary to widespread belief, Twitter wasn’t in the business of “banning conservatives.” They were mostly focused on stopping jerks from harassing people. Multiple studies have showed that there’s no evidence that Twitter’s enforcement was actually biased against conservatives. It was biased against people being jerks and creating real-world harm.

That takes us to the eventual Presidential ban, which many of Trump’s fans insist is evidence of bias. But, the reality is that Twitter bent over backwards to leave Trump on the platform despite years of him violating its rules. The company really did everything to keep him on the platform (including the aforementioned fact checking bits, adding more speech) and only took this action after actual violence had broken out, and the company reasonably worried that Trump was agitating for more such violence. It was never about speech, but about not being complicit in encouraging violence. As we noted, and has proven true, Trump has never had any problem getting whatever message he wants out there. But that doesn’t mean that any individual private company needs to help him.

Indeed, this is the key point that I’ve been making for years, and that many people have trouble with: the ability of websites to moderate as they see fit, to create their own rules, and build their own communities (which can include taking enforcement action against those who break the rules) is actually essential for free speech online. Because, without it, websites wouldn’t be willing to host any third party speech at all. There would be many, many fewer places online where you could speak if websites couldn’t craft their own rules.

For all the talk of “the new public square,” as we’ve noted in the past, it’s the internet itself that is the new public square, and there are tons of different communities forming in that public square, each with their own rules. And it’s that diversity that enables so much speech online. Different places where different people can speak, and where there are different rules and norms and accepted behavior. It’s not all just one free for all, because that would just be pure noise and no signal. Twitter has been one key piece of all that. And much of that is because of Gadde’s leadership on these very issues.

And that’s not even getting to the ways in which Twitter has been a strong and true defender of actual free speech around the globe. First off, unlike Facebook and many, many other social media companies, Twitter from the beginning did not try to enforce any kind of “real names” policy, and not only allowed, but often encouraged people to use aliases and remain anonymous. This has been incredibly important in setting up Twitter as a tool for free speech, in that anonymity has enabled whistleblowers and critics to be able to express themselves without fear of direct reprisal.

But, even more importantly, unlike almost any other internet company I can think of, Twitter has embraced the fact that anonymity is protected by the 1st Amendment to fight in court over and over and over again against attempts to reveal anonymous users’ identity. It would even step into cases where it was not a party, and where most other companies would not just stand aside but simply cough up subpoenaed or government-requested data. Indeed, from early on Twitter was known to stand up against government demands for data back when most internet companies were happy to hand it over.

When it comes to pushing back against governments and their attempts to crack down on speech, Twitter’s record is undeniably stronger than just about any other company. When all the other big internet companies settled with the federal government regarding keeping secret how often it was demanding info on their users, Twitter filed and fought a First Amendment lawsuit to be able to reveal as much information as they could.

That’s supporting free speech, and much of that was driven by Gadde and her leadership.

And, that wasn’t just in the US. Twitter was among the most vocal companies pushing back on foreign governments and their demands for information or their demands to censor people. Just as one example, in India, the government demanded that Twitter remove users critical of the government, and Twitter fought back, even as the government threatened to jail Twitter employees. And when India passed a law to give the government more control over internet censorship, Twitter sued the Indian government. In fact, this lawsuit was something that Elon Musk complained about, suggesting that he’s way more willing to go along with government demands. Indeed, Musk also praised the EU’s new Digital Services Act, which is a highly censorial bill that demands all sorts of content takedowns and other censorial actions. Twitter, under Gadde’s leadership, was one of the most vocal companies in calling out how the Digital Services Act could harm speech online.

Even as we speak, one of the biggest free speech cases facing the Supreme Court this term has Twitter as a party. But Musk just fired the company’s two top legal executives who were responsible for filing the cert petition to get the Supreme Court to hear the case. I have no idea what that means, but I fear a potential shift in legal strategy.

There are many more examples, some public, many that are not public at all. But I can think of no other internet executive who has done as much for actual free speech online than Vijaya Gadde. Some people have said that whoever else Musk puts in place could just continue what she’s done, and I hope that’s the case. But, again, as hopefully some of this thread has highlighted, there has been no one at any other internet company who has been willing to do as much as she has done on these issues, so replacing her with anyone else is likely to be a downgrade. I would have said the exact same thing even if Musk hadn’t taken over and she’d left the company while it was still run by the old regime. Gadde leaving Twitter is a loss for free speech — and that seems especially true given Musk’s other comments about anonymity, about the case against India, and about the DSA.

No matter what narrative you believe, Twitter has been by far the biggest defender of free speech online over the past decade, doing way more than much larger companies, and much of that was driven by Gadde’s commitment to free speech. The firing is a loss for Twitter. It’s a loss for Musk. And it’s a loss for free speech for all of us.

Filed Under: 1st amendment, anonymity, content moderation, elon musk, free speech, nsls, vijaya gadde
Companies: twitter

No, Twitter Doesn’t Want To ‘Censor’ Anyone, It Just Wants Everyone To Stop Attacking Each Other

from the have-a-little-respect dept

Last month I wrote about how, contrary to the weird narrative, Twitter has actually been among the most aggressive companies fighting for free speech online. While many people criticize it, they are wrong, or just uninformed. Mostly, they think (falsely) that because Twitter doesn’t want some speech that you like on their site, it somehow means they’re against free speech. The reality is a lot more complicated, of course. As we pointed out, former Reddit CEO Yishan Wong’s long thread about content moderation highlighted that people doing content moderation generally aren’t making decisions based on politics, they just want people to stop fighting all the time.

Recently, the Washington Post had an excellent article about Twitter’s Vijaya Gadde, the company’s top lawyer, who also runs their trust and safety efforts, that talks about how she is a strong defender of free speech, who also recognizes that, to support free speech, you have to come up with plans to deal with abusive, malignant users. That doesn’t mean automatically banning them, but exploring the solution space to see what kinds of programs you can put in place to limit the destructive nature of some users.

I recognize that this is a space filled with people who insist their emotional beliefs are the be all and end all when it comes to content moderation, but it would be nice if at least some of those people were willing to actually read through articles like this, that highlight how many different trade-offs and nuances there are in these discussions.

Twitter colleagues describe Gadde’s work as difficult but necessary and unmotivated by political ideology. Defenders say her team, known as the trust and safety organization, has worked painstakingly to rein in coronavirus misinformation, bullying and other harmful speech on the site, moves that necessarily limit some forms of expression. They have also disproportionately affected right-leaning accounts.

But Gadde also has tried to balance the desire to protect users with the values of a company built on the principle of radical free speech, they say. She pioneered strategies for flagging harmful content without removing it, adopting warning labels and “interstitials,” which cover up tweets that break Twitter’s rules and give people control over what content they see — strategies copied by Twitter’s much larger rival, Facebook.

The article also details how she has lead the company’s aggressive pushback against foreign laws that are real attacks on free speech:

For years, she has been the animating force pushing Twitter to champion free expression abroad. In India and Turkey, for example, her team has resisted demands to remove content critical of repressive governments. In 2014, Gadde made Twitter the only Silicon Valley company to sue the U.S. government over gag orders on what tech companies could say publicly about federal requests for user data related to national security. (Five other companies settled.)

Contrast that with Elon Musk, who quickly endorsed the EU’s approach to platform regulation at a time when Twitter, under Gadde’s leadership, has been pushing back against parts of that plan, by noting how it conflicts with basic free speech concepts.

The article highlights, as we have tried to do for years, that content moderation is a complicated and nuanced topic, that doesn’t fit neatly with the arguments around “free speech.” Part of this is that social media isn’t just about speech, but about being able to get your speech in front of a specific audience. People mostly don’t care if you spout bullshit nonsense on your own website where only those who seek it out can find it, but due to the nature of Twitter and how it connects users, it allows people to inject their speech into the notifications of others — and that creates elements for abuse and harassment, that actually harm free speech, by driving people out of the wider discussion entirely.

There is, obviously, some level of balance here. Not all criticism, hell, most criticism isn’t abusive or harassing, even if it may feel that way to those on the receiving end of it. But anyone trying to build an inclusive and trustworthy forum needs to recognize that bad actors push thoughtful users away. And at least some plan needs to be in place to deal with that.

But, part of that, is that Twitter’s DNA has always been to favor more speech over less, and the company really only pushes back in fairly extreme cases when pushed to the edge, and where no other decision is reasonably tolerable, if the site wants to keep users.

Even as the company took action to limit hate speech and harassment, Gadde resisted calls to police mere misinformation and falsehoods — including by the new president.

“As much as we and many of the individuals might have deeply held beliefs about what is true and what is factual and what’s appropriate, we felt that we should not as a company be in the position of verifying truth,” Gadde said on a 2018 Slate podcast, responding to a question about right-wing media host Alex Jones, who had promoted the falsehood on his show, Infowars, that the Sandy Hook school shooting was staged.

The company was slammed for statements like this at the time, but believed strongly that it was drawing the line in a place that made the most sense to be broadly inclusive. Of course, that line moves over time as the context and the world around us moved. In the early days of the pandemic, with people dropping dead everywhere, at some point, most people are going to realize that spreading more information that leads to more people dying feels morally disturbing.

It’s not out of any political beliefs, or a desire to “censor” viewpoints. It’s just a basic moral stance on how to help the public stay alive.

The company, also under her leadership, pushed for alternative tools to dealing with misinformation, rather than the go to move of taking down content:

Meanwhile, Gadde and her team were working with engineers to develop a warning label to cover up tweets — even from world leaders such as Trump — if they broke the company’s rules. Users would see the tweet only if they chose to click on it. They saw it as a middle ground between banning accounts and removing content and leaving it up.

In May 2020, as Trump’s reelection campaign got underway, Twitter decided to slap a fact-checking label on a Trump tweet that falsely claimed that mail-in ballots are fraudulent — the first action by a technology company to punish Trump for spreading misinformation. Days later, the company acted again, covering up a Trump tweet about protests over the death of George Floyd that warned “when the looting starts, the shooting starts.” More such actions followed.

And while some people insisted that this was a form of “censorship,” it was actually the opposite. It was literally “more speech” responding to speech that Twitter felt was problematic. Twitter was one of the first companies to use this approach as an alternative to removing speech… and yet it still resulted in very angry people insisting it was proof of censorship.

Anyway, there’s a lot more in the article, but it’s a really good and thorough look not just at the various tradeoffs and nuances at play, but also how Twitter’s current management made some of those decisions, not to try to silence voices, but quite the opposite.

Filed Under: content moderation, free speech, vijaya gadde
Companies: twitter

Sony Goes One Ridiculous Step Further: Threatens To Sue Twitter Over Leaked Email Screenshots

from the don't-they-have-lawyers-who-understand-the-law dept

David Boies is a bigtime lawyer — perhaps one of the most famous lawyers around. He worked on the antitrust cases against both IBM and Microsoft. He was Al Gore’s lawyer over the contested 2000 election. He was even Napster’s lawyer when it got sued by the RIAA. Of course, he also represented SCO in its ill-fated lawsuits. He was Oracle’s lawyer in its lawsuit against Google over the use of Java in Android. Come to think of it, Boies — despite all his fame — seems to come out on the losing end of an awful lot of these high profile lawsuits. And, these days, he’s representing Sony Pictures in trying to deal with the hack. As mentioned, a week or so ago, he sent off a bunch of very ill-advised threat letters to news publications writing about the Sony hack (tragically, we never received one, though someone from Boies’ office did appear to call us and hang up before leaving a message — seriously). Then, we just had a story about someone from Sony threatening a Twitter user for posting screenshots from leaked emails.

But, now, Boies has taken it up a notch and is apparently threatening to sue Twitter itself for not blocking those screenshots:

The letter?sent from David Boies, the lawyer Sony has hired to help guide it through the aftermath of the hack, to Vijaya Gadde, Twitter?s general counsel?says that if ?stolen information continues to be disseminated by Twitter in any manner,? Sony will ?hold Twitter responsible for any damage or loss arising from such use or dissemination by Twitter.?

You have to assume that someone with Boies’ stature, or at least one of the young lawyers that must be employed by his firm, is familiar with Section 230 of the CDA, because this is a classic case in which Twitter has absolute immunity from any kind of legal threat. And just the fact that Boies would threaten Twitter over this seems monumentally stupid. Not only does it make Boies and Sony look like bumbling fools, it just calls more attention to the fact that people are tweeting details from the Sony hacks.

You can read the full letter [pdf], which was provided by Vice’s Motherboard blog which broke this story, and see how ridiculous this is. Most of the letter is really focused on arguing that Twitter should kill the account of the user we mentioned yesterday who Sony is trying to intimidate. It goes through all sorts of twists and turns to argue that the user, Val Broeksmit, is breaking Twitter’s terms of service and his account should be closed. It mostly focuses on the tired publishing “Stolen Information” as if that’s a thing. So Boies argues that it violates Twitter’s terms of service, and then throws out a somewhat random selection of laws — almost all of which certainly don’t apply to Broeksmit or Twitter:

We understand that the Account Holder?s publication of this Stolen Information is (and any other account holder?s similar use would be) in violation of numerous provisions of Twitter?s Terms of Use, including the prohibitions against (i) publishing copyrighted materials and ?other people’s private and confidential information… without their express authorization and permission,? and (ii) use of Twitter ?for any unlawful purposes or in furtherance of illegal activities.?

The possession, use, and publishing of the Stolen Information implicates numerous federal and California state laws, including, but not limited to, the Computer Fraud & Abuse Act (18 U.S.C. § 1030), the Copyright Act (17 U.S.C. §§ 501, et seq.), the California Comprehensive Computer Data Access & Fraud Act (Cal. Penal Code § 502), California’s Stolen Property Law (Cal. Penal Code § 496), the Uniform Trade Secrets Act (Cal. Civ. Code §§ 3426, et seq.), and the California Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.), among others, especially when such actions are taken knowingly in furtherance of federal and state crimes committed by the perpetrators, including extortion.

Of course, here’s the main problem: while some of the laws likely apply to whoever hacked Sony, basically none of them apply to someone then publishing the leaked documents. As has been explained time and time again, the First Amendment protections for publishing such information are pretty strong and there’s miles of case law to support that. Boies’ attempt to get around that is a massive stretch. His argument that posting this information violates Sony’s copyright is, of course, ridiculously weak. The fair use arguments for publishing such info are very strong. Even worse is that the CFAA claim applied not to the original hackers, but to Twitter users posting information, seems based on Boies pretending that a terms of service violation is a form of hacking. But that’s a theory (thankfully) been rejected in recent years by the courts. The state law claims also seem fairly weak on a variety of levels and just reek of piling on.

And as Popehat points out, Boies may be committing an ethical violation in using threats of criminal prosecution (under the CFAA — which has both criminal and civil parts) to gain civil advantage — which violates California’s rules of professional conduct for lawyers. Of course, these are the kinds of rules that aren’t often applied to lawyers, and especially not those with Boies’ stature.

Taking it a step further, even if Broeksmit were breaking the law, Twitter is — as mentioned — protected from nearly all liability via Section 230 of the CDA. Not that Boies appears to care:

If Twitter does not comply with this request, and the Stolen Information continues to be disseminated by Twitter in any manner, SPE will have no choice but to hold Twitter responsible for any damage or loss arising from such use or dissemination by Twitter, including any damages or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from Twitter?s actions.

Yeah, that’s not how the law works. Of course, Boies brings up intellectual property because the CDA explicitly doesn’t apply to intellectual property — but, again, the IP claims raised by Boies are already pretty weak and Twitter has other pretty strong protections for the copyright side of things. Furthermore, Twitter would have a strong argument that Boies is just claiming IP as a weak attempt to get around the Section 230 protections. Finally, it would seem that this is a pretty clear attempt at a SLAPP, giving Twitter the protections of California’s strong anti-SLAPP laws — meaning that if Sony actually sued, it may have to pay Twitter for bringing a frivolous suit designed to shut people up. Basically, Boies is making a lot of noise without much legal basis — and, in the process, calling tremendous attention to one guy who’s been finding a bunch of interesting things in the emails.

We’ve already discussed how bad Sony’s computer security strategy has been — and now it seems like its legal strategy is equally brain-dead.

Filed Under: cda 230, cfaa, copyright, david boies, section 230, sony hack, threats, val broeksmit, vijaya gadde
Companies: sony, twitter