January 27, 2023 / by 

 

The Tanking of Twitter

[NB: Check the byline, thanks. /~Rayne]

First, before the rest of this post, a warning: if you have a Twitter account, active or inactive, go turn on 2FA.
Do it on a desktop or laptop, not your phone.
Be sure to obtain a single-use backup code for secure login in case you’re unable to use 2FA.*

There are too many reports right now of quirky things going on at Twitter. Just play it safe and protect your account.

~ ~ ~

It’s amazing how little drag billions of dollars provides in the face of gravity — and by gravity I mean the force hubris and ignorance may exert when they meet reality.

This observation is spot on after Thursday’s conference call with Twitter’s current owner, Elon Musk:

I don’t even dare embed the original tweet because it may disappear if the worst should come to pass and swaths of Twitter are shuttered to outside access.

How the hell did Musk, the head of SpaceX and Tesla, manage to burn up so much goodwill inside 16 days?

Let’s take a look at the timeline of events since Musk began buying stock in Twitter.

Date

Description

31-JAN-2022

Musk begins accumulating shares of Twitter

14-MAR-2022

Musk now owns 5% of Twitter

25-MAR-2022

Musk polls Twitter users, “Free speech is essential to a functioning democracy. Do you believe Twitter rigorously adheres to this principle?” 70% of 2 million participants said no.

26-MAR-2022

Reuters: Elon Musk giving ‘serious thought’ to build a new social media platform

Musk makes contact with former Twitter CEO Jack Dorsey as well as Twitter board members to discuss the platform

04-APR-2022

Musk filed a Schedule 13G with the Securities and Exchange Commission, revealing his acquisition of a 9% stake in Twitter.

The SEC acknowledged receipt of the 13G and asked Musk for clarification of several points including how Musk determined March 14 was the date which triggered a need for the 13G filing, and why he didn’t file within 10 days of March 14.

04-APR-2022

Twitter’s board offers Musk a seat on the board if he accumulates no more than 14.9% of the company’s stock. The offer includes a background check and completion of a D&O questionnaire.

https://www.sec.gov/Archives/edgar/data/1418091/000119312522095651/d342257dex101.htm

05-APR-2022

CEO Parag Agrawal welcomes Musk to the board via tweet.

09-APR-2022

Including a list of the Twitter accounts with the most followers, Musk tweets, “Most of these “top” accounts tweet rarely and post very little content. Is Twitter dying?

Agrawal replied that the tweets were unhelpful. It isn’t known until much latter via released text messages that Musk and Agrawal had been talking up to this point.

09+10-APR-2022

AP: Musk suggests Twitter changes, including accepting Dogecoin; Musk tweeted these ideas over the weekend.

11-APR-2022

AP: Tesla CEO Elon Musk won’t join Twitter’s board after all; Agrawal tweeted this news on Monday.

13-APR-2022

Musk files Amendment 2 to his Schedule 13D/A

The amendment includes his offer — a non-binding proposal — to Twitter’s Chairman of the Board Bret Taylor to acquire Twitter at $54.20/share and take it private.

15-APR-2022

Twitter adopted a rights agreement which included a poison pill.

20-APR-2022

Musk obtained $46.5 billion in financing commitments according to exhibits to amended 13D filed with the SEC.

25-APR-2022

Twitter’s board unanimously approved an offer by Musk to buy Twitter for $44 billion.

29-APR-2022

Reuters: Musk sells Tesla shares worth $8.5 billion ahead of Twitter takeover

02-MAY-2022

In 10-Q filing to SEC, Twitter estimated spam accounts as 5% or less of active users.

Musk tweeted, “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated. I also want to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans. Twitter has tremendous potential — I look forward to working with the company and the community of users to unlock it.”

04-MAY-2022

Amendment 6 to Schedule 13D showed Musk obtained commitments amounting to more than $7 billion in funding for the acquisition of Twitter.

10-MAY-2022

NPR: Elon Musk says he’ll reverse Donald Trump Twitter ban

12-MAY-2022

Twitter CEO announced a hiring freeze and cost cutting along with releasing two executives. They were:

– Kayvon Beykpour, general manager

– Bruce Falck, general manager for revenue

13-MAY-2022

WaPo: Elon Musk says Twitter deal is on hold, putting bid on shaky ground — Musk expressed concern that spam/accounts were in actuality more than 5% of users in spite of Twitter’s 10-Q statement.

25-MAY-2022

Federal Trade Commission and Dept of Justice Order Twitter to Pay $150 Million Penalty for Violating 2011 FTC Order and Cease Profiting from Deceptively Collected Data

06-JUN-2022

WaPo: Elon Musk threatens to back out of Twitter deal over withholding data – he claimed Twitter was “actively resisting” requests for information though his April agreement to purchase Twitter waived the right to look more deeply at the company’s data.

08-JUL-2022

WaPo: Elon Musk files to back out of Twitter deal – Musk’s letter to Twitter filed with the SEC said he was “terminating their merger agreement” but Twitter replied the same day saying it would sue Musk.

12-JUL-2022

NYT: Twitter Sues Musk After He Tries Backing Out of $44 Billion Deal – the company filed suit in Delaware’s Chancery Court.

19-JUL-2022

Chancellor Kathaleen St. Jude McCormick set a trial date for October 17 in Delaware’s Chancery Court.

29-JUL-2022

Bloomberg: Musk Files Defense Under Seal as Twitter Trial Set for Oct. 17

09-AUG-2022

A former Twitter employee was found guilty of spying on behalf of Saudi Arabia.

23-AUG-2022

USNews: Peiter Zatko, Twitter’s former security chief July 2020-January 2022, claimed in a whistleblower complaint filed in July with the Securities and Exchange Commission, the Federal Trade Commission and the Department of Justice that Twitter was not straightforward with regulators about its information security and its handling of disinformation.

13-SEP-2022

Twitter’s former security chief Zatko testified before the Senate Judiciary Committee about Twitter’s problematic information security.

03-OCT-2022

Musk tweets Vladimir Putin’s “peace plan”; it’s alleged this tweet occurred after Musk had a conversation with Putin.

04-OCT-2022

Twitter disclosed in an SEC filing that Musk agreed to complete the purchase of Twitter for $44 billion according to the terms established in April.

06-OCT-2022

WaPo: Twitter-Musk trial delayed as sides argue over money and trust

20-OCT-2022

Report: Musk explained to prospective investors that he will cut Twitter staffing by 75%

26-OCT-2022

Musk arrives at Twitter’s corporate offices carrying a bathroom sink. “Let that sink in!” he tweeted along with a video of his entrance.

27-OCT-2022

Musk takes control of Twitter, firing uppermost management including

– Parag Agrawal, Chief Executive Officer

– Ned Segal, Chief Financial Officer

– Vijaya Gadde, Global Lead of Legal Policy, Trust, and Safety

– Sean Edgett, General Counsel

30-OCT-2022

The Verge: Twitter is planning to start charging $20 per month for verification – Musk threatened to fire employees building this verified user system.

30-OCT-2022

Musk tweeted, “The whole verification process is being revamped right now

01-NOV-2022

Departure of more Twitter officials revealed, top management gutted; exits include

– Sarah Personette, Chief customer officer

– Dalana Brand, Chief People and Diversity Officer

– Nick Caldwell, General manager for core technologies

– Leslie Berland, Chief marketing officer

– Jay Sullivan, Head of product

– Jean-Philippe Maheu, vice president of global sales

01-NOV-2022

Major brands pause advertising on Twitter, including Audi, General Mills, General Motors, Ad rep Interpublic Group, Mondelez International, Pfizer, Volkswagen

01-NOV-2022

Twitter to deny Blue subscribers access to ad-free articles

01-NOV-2022

Musk mixed it up with author Stephen King over the proposed $20/month fee for Twitter Blue verified status

01-NOV-2022

CNET: Twitter Will Charge $8 a Month for Verified Accounts, Elon Musk Suggests

04-NOV-2022

Half of Twitter’s workforce is pink slipped.

Included are personnel who were building the new verification system.

04-NOV-2022

CNN: Elon Musk said Twitter has seen a ‘massive drop in revenue’ as more brands pause ads

04-NOV-2022

Entire departments were gutted:

– Human Rights

– Communications

– Accessibility Experience Team

– META (Machine learning ethics, transparency and accountability)

– Curation

04-NOV-2022 through 08-NOV-2022

CNN: Elon Musk sold nearly $4 billion worth of Tesla stock since Twitter deal closed

05-NOV-2022

Engadget: Twitter starts testing paid account verification on iOS

06-NOV-2022

Bloomberg: Twitter Now Asks Some Fired Workers to Please Come Back – some were fired “by mistake”

06-NOV-2022

Actor Kathy Griffin suspended by Twitter after mocking Musk by changing her account name and avatar to copy Musk’s.

07-NOV-2022

CBS: Musk says Twitter account holders who impersonate others will be banned

08-NOV-2022

Guardian: Twitter to offer ‘official’ label for select verified accounts – “Accounts that will receive [the label] include government accounts, commercial companies, business partners, major media outlets, publishers and some public figures,” Twitter’s Early Stage Products manager Esther Crawford tweeted.

08-NOV-2022

Reuters: Twitter engineer says he was fired for helping coworkers who faced layoffs — several employees are now filing a lawsuit against Twitter for firing them while engaged in protected work per the National Labor Relations Board.

09-NOV-2022

1:45 p.m. ET – Twitter users note there are two Twitter Blue services at different prices.

2:00 p.m. ET – Engadget: Twitter’s $8 a month Blue subscription with verification is rolling out; available on iOS only relying on Apple’s identity verification.

2:52 p.m. ET – Twitter users receive a notice there will be a change in Twitter Blue service; the service is being revamped with current subscriptions to be canceled at the end of the month.

09-NOV-2022

5:26 p.m. ET – Twitter Support tweets, “We’re not currently putting an “Official” label on accounts but we are aggressively going after impersonation and deception.

10-NOV-2022

Several high-level technical executives resigned, including

– Yoel Roth, Lead, Integrity and Safety

– Lea Kissner, CISO

– Damien Kieran, Chief Privacy Officer

10-NOV-2022

Internal communications about separations and outstanding compensation are a mess.

10-NOV-2022

With little advance notice, Musk hosts an Ask Me Anything-type of meeting with employees. Topics included:

– turning Twitter into a banking services business-news

– insufficient cash flow with bankruptcy a possibility

– elimination of remote/work from home with mandatory return to the office

– offering short-form video in competition with TikTok (like Twitter’s now-defunct Vine service)

10-NOV-2022

Multiple outlets note that Twitter may be in violation of the FTC’s 2011 Consent Decree by not developing a security program documented in writing within days of rolling out new services.

A former outside counsel to Twitter warned of FTC fines for lack of compliance, but Twitter is apparently requiring its engineers to “self certify” while failing to put new services through full red team review before implementation in production environment.

10-NOV-2022

A U.S. Senator, a major pharmaceutical company, a major aerospace and defense company, and Chiquita are among the noted individuals and organizations whose identities have been spoofed by accounts using the new Twitter Blue verification service.

10-NOV-2022

Twitter paused its Twitter Blue verification service on Thursday night after the new service had been abused with misinformation.

11-NOV-2022

NYT: Insiders report as much as 80% of engineering staff have been fired, leaving little more than a skeleton crew to manage key portions of the platform.

11-NOV-2022

Twitter’s remaining Human Resource team sent laid-off workers an email acknowledging delays sending their separation agreements and release of claims documents. But HR sent it CC: not BCC: with a Reply-All barrage following.

Stories of badly handled terminations are becoming public.

12-NOV-2022

Thread: “Scoop from within Twitter: small things are breaking, not enough engineers to fix them. Noticed that notification counts are not showing? The BE service powering it is down since Thursday. A bug was filed, but the team that would fix it is full on with verification work.

12-NOV-2022

More personnel are being terminated overnight, without warning. Managers are learning as their reports including contract personnel suddenly disappear from resources.

The last couple of items were added late Saturday night. I’m afraid to look and see what might have transpired since I checked last.

There’s no nice way to put this: this entire situation is fucked up and it’s all on Elon Musk.

He’s done immense damage to Twitter’s brand as well as his own personal brand. He seems to think branding isn’t important though advertising customers like Eli Lilly, Lockheed Martin, and Chiquita offer evidence brand damage from sloppy management actually costs money.

The FTC is likely to punctuate this even further because of the egregious manner in which Twitter under Musk’s ownership has failed to comply with the 2011 consent decree. Musk ought to talk with Facebook’s Zuckerberg about how expensive this can be.

And there are humans who are going to pay for Musk’s cavalier behavior — families who might be expecting a child who are now dealing with COBRA, remote workers who are being forced back to the office in areas with severe housing shortages (that’d be Ireland, not just the U.S.). Musk has tweeted about this but this issue didn’t come up out of thin air, and like everything else so far has been handled badly.

There’s some question whether Twitter has adequate staffing related to compliance with EU regulations and GDPR and are they in Ireland.

Three points about Musk’s Twitter acquisition really boggle my mind after reading all this material. First,

Mr. Musk had brought his own advisers, many of whom had worked at his other businesses, such as the digital payments company PayPal and the electric carmaker Tesla. They parked themselves in the “war room,” on the second floor of a building attached to Twitter’s headquarters. The area, which Twitter used to fete big-spending advertisers and dignitaries, was stocked with company memorabilia. …

The advisers included the venture capitalists David Sacks, Jason Calacanis and Sriram Krishnan; Mr. Musk’s personal lawyer Alex Spiro; his financial manager Jared Birchall; and Antonio Gracias, a former Tesla director. Joining in were engineers and others from Tesla; from Mr. Musk’s brain interface start-up, Neuralink; and from his tunneling company, the Boring Company.

Musk is relying on the expertise of people in disparate businesses which have nothing to do with social media — unless Musk is already thinking he’s going to Johnny Mnemonic users’ heads with their Twitter accounts using Neuralink, a product which is likely to go nowhere since it is technically a medical device and it’s not ready for testing in humans.

The Boring Company, though. Really? Name a successful, profitable installation. Don’t mind me not holding my breath waiting, though.

There have been rumors Musk is surrounded by yes men and sycophants. We may now know who they are.

The  second questionable point:

The scope of layoffs was a moving target. Twitter managers were initially told to cut 25 percent of the work force, three people said. But Tesla engineers who reviewed Twitter’s code proposed deeper cuts to the engineering teams. Executives overseeing other parts of Twitter were told to expand their layoff lists.

Tesla. Engineers.

The people who engineer electric cars, the software of which is not safe for autonomous self driving, somehow understand enough about social media software used by hundreds of millions of accounts globally, 7/24/365, to make an assessment of staffing requirements.

They somehow understand the issues consumers, governments, industries, nonprofits/NGOs have had using and relying on this social media application since it was launched 16 years ago.

Clearly not since they missed the part about the FTC’s consent decree which might shape how any code is written, tested, rolled out, operates, and maintained.

The third doozy:

Twitter executives also suggested assessing the lists for diversity and inclusion issues so the cuts would not hit people of color disproportionately and to avoid legal trouble. Mr. Musk’s team brushed aside the suggestion, two people said.

This is the same Elon Musk whose businesses have been sued more than once for discriminatory practices, pointedly choosing to ignore federal and state employment law.

It’s a pattern of behavior and it’s not acceptable, particularly if Musk’s corporations are beneficiaries of federal incentives.

~ ~ ~

We’re long overdue to regulate social media, not just because they are monopolistic and oligopolistic.

Our businesses, our personal lives have become dependent on some of these platforms. So has our government. It should not be possible to spoof the identity of a U.S. member of Congress let alone any other government employee or entity. It should not be easy to trash businesses’ reputations for the lulz.

Nor should we as individuals be waiting for the moment we learn our personal data has been breached because a billionaire was sloppy and indifferent about its security though it’s a key facet of the business he bought for the lulz.

Democrats may have a majority in both houses of Congress next year. But they already have one now and they should use it immediately learn why Elon Musk thinks his new toy is above the law and beyond regulatory oversight.

__________
* I meant to add you should seriously consider deleting the Twitter app from your phone. I suspect there will be attempts to hack users’ accounts using the cell phone information Twitter has on record. Protecting this data was at the heart of the FTC’s consent decree.


Lasciando il matrimonio di Elmo

[NB: check the byline, thanks. /~Rayne]

My moderation team counterpart bmaz is a bit put out at people who are flouncing Twitter dramatically. We don’t see eye to eye about the topic of departing Twitter now. I’m among those who are unwinding their accounts now that Elmo has been forced into marrying Twitter, Inc.

Elmo’s turbulent management style is one reason I’d like to leave. Who knows what any given day will yield – will a new policy pop up out of the blue insisting users must pay for services to which they’ve become accustomed for years?

Security is another matter of concern, and in saying security I mean I have my doubts about personal data security now that Elmo has capriciously announced he’s going to fire 75% of Twitter’s personnel…and now 50% this Friday…and maybe with or without compliance with state or federal WARN Act.

Does anyone really think Twitter personnel are at top form right now when they’re looking over their shoulder for their pink slip? Could you blame them if they aren’t?

But my biggest single reason for wanting to leave Twitter is this: I do not want to be Elmo’s product.

~ ~ ~

Artist Richard Serra said of his experience viewing the painting Las Meninas (c. 1656) by Diego Velázquez:

“I was still very young and trying to be a painter, and it knocked me sideways. I looked at it for a long time before it hit me that I was an extension of the painting. This was incredible to me. A real revelation. I had not seen anything like it before and it made me think about art and about what I was doing, in a radically different way. But first, it just threw me into a state of total confusion.”

When one first sets eyes upon the painting, it appears to be one of the young Infanta Margaret Theresa of Spain and her ladies in waiting, standing next to a portraitist at work. It takes a moment to realize that the portraitist isn’t painting the Infanta but whomever the Infanta is observing, and yet another moment to realize the subject of the portrait and the Infanta’s gaze can be seen in the mirror behind them.

The painting’s observer will then realize they are standing in for the Infanta’s parents who are being painted by the portraitist — and the painting is a self portrait of Velázquez at work. The painting’s observer is a proxy who has not fully consented to their role but nonetheless becomes the subject of the painter at work.

It is this same inversion which must be grasped to understand why I refuse to be Elmo’s product.

I know that I am not Twitter’s customer. I’m not the consumer.

If I remain I am the consumed in Elmo’s forced marriage scenario.

~ ~ ~

Serra and director Carlota Fay Schoolman produced a short film in 1973 entitled, “Television Delivers People.” It was considered video art, using a single channel with a text scroll to critique television.

This excerpt explains the relationship between the audience and television:

Commercial television delivers 20 million people a minute.
In commercial broadcasting the viewer pays for the privilege of having himself sold.
It is the consumer who is consumed.
You are the product of t.v.
You are delivered to the advertiser who is the customer.
He consumes you.
The viewer is not responsible for programming —
You are the end product.

What television did in the 1970s, social media does today. It consolidates access to disparate individuals over distances into audiences of varying sizes and offers them to advertisers.

Social media is mass media.

Social media, however, doesn’t serve audiences to advertisers alone. Given the right kind of incentives and development, audiences can be bought for other purposes.

There are almost no regulatory restrictions on audiences being identified, aggregated, bought, and resold, and very little comprehensive regulation regarding data privacy.

Elmo so far doesn’t appear to understand any of this between his uneducated blather about free speech and his ham handedness about Twitter’s business model.

I do not want to be sold carelessly and indifferently by Elmo.

~ ~ ~

If you are a social media user, even if validated or a celebrity with millions of followers, you are the product. You are being sold by the platform to advertisers.*

There may even be occasions when you’re not sold but used – recall the access Facebook granted to researcher Aleksandr Kogan in 2013 as part of experimentation, which then underpinned the work of Cambridge Analytica ahead of the 2016 election.

Facebook was punished by the Federal Trade Commission for violating users’ privacy, but there’s still little regulatory framework to assure social media users they will not be similarly abused as digital chattel.

What disincentives are there to rein in a billionaire with an incredibly short attention span and little self control now that he’s disbanded Twitter’s board of directors? What will prevent Elmo from doing what Facebook did to its users?

I’ve raised a couple kids with ADD. I don’t want to be on the other end of the equation, handled as digital fungible by an adult with what appears to be ADD weaponized with narcissism.

I deserve better.

I’m only going to get it if I act with this understanding, attributed again to Serra:

If something is free, you’re the product.

~ ~ ~

By now you should be used to hearing this, but I’m leaving this marriage, Elmo.

Treat this as an open thread.

__________

* We do not sell data about our community members.


Elmo’s Forced Marriage

I feel like a lot of the commentary about Elon Musk’s purchase of Twitter — which includes a great deal of Kremlinology about what Elmo says on Twitter — has forgotten how we got here.

Elmo entered what is effectively a forced marriage.

Consider this dramatic reenactment:

Twitter: Hey, Elon, can you come help build value in our platform? Jack said it’d be a good idea.

Elmo: It’s a deal!

Twitter: Oh wait, we have to do due diligence on you first.

Elmo: Fuck that. I’m buying you all out. Twitter sucks!!!

Twitter: Okaaayyyy… If you want to buy us without yourself doing due diligence, you got it.

Elmo: But wait! Bots! Twitter sucks!!!

Twitter: You said no due diligence.

Elmo: Deal is off! Bots! Twitter sucks!!

Twitter: See you in court.

Twitter: Huh. These emails you sent are really interesting. We really look forward to the deposition and trial.

Elmo: Uh … uh … uh, alright then, the deal is back on.

At this point, a week into Elmo’s ownership, it’s unclear whether he went through with the purchase because he really wanted to buy the joint, or because in the face of exposure in the spring (in the form of due diligence), and last month (in the form of a deposition and trial), he kept doubling down, effectively dodging scrutiny of his own suitability to run Twitter by throwing money at it, $44 billion instead of the billion he’d have to pay to back out of the deal. And for much of that time, Elmo responded to Twitter’s scrutiny by attacking the company.

Thus far, it seems clear that Elmo is not suitable to run Twitter.

If he were merely the richest man in the world and not instead a billionaire whose wealth is heavily invested in an existing company that is subject to the whim of the market, a company the value of which has been damaged by Elmo’s Twitter tantrum — if he were spending his own money on the purchase — it might have ended there. But to pull off the purchase, he added a bunch of new debt to a company already reeling under its existing debt load, making the dire financial situation of Twitter even worse, in the middle of a tech downturn.

To make matters still worse, the entire world knows that the richest man in the world just made one of the worst deals in history, buying a company worth maybe $20 billion — a company whose own worth he spent months diminishing — for $44 billion.

It’s got to rankle a thin-skinned egotist like Elmo, knowing that all the pinheads he attacked at the beginning of this process just watched him get utterly fleeced in a business deal.

The richest man in the world just got his ass handed to him, and in his first act after consummating this forced marriage, he fired the people who handed him his ass in such a way that Elmo will either have to pay severance or settle lawsuits for the way he fired them.

And that’s reason why I think people are investing far too much faith in what Elmo is saying on Twitter. Is he saying what he’s saying because he’s testing out an affirmative business plan? Or is he saying what he’s saying because he loathes many of the most prominent people on Twitter, who all told him he was wrong and just watched him make an epically bad business deal, but he nevertheless needs to con enough advertisers and funders and Twitter members in the interim to stave off further personal losses on the company?

One of his first instincts was to prove those pinheads wrong about disinformation by embracing conspiracy theories about the attempted kidnapping of Nancy Pelosi.

After deleting that with no acknowledgment of how stupid the tweet was, Elmo laughed it off by calling the NYT fake news, something that may have salved his ego but surely made advertisers even more wary of continuing to spend money with him.

Since then, Elmo has turned to making it look like There Is a Plan to charge for Twitter.

Elmo would later admit that verification would be replaced with notice of someone’s stature, akin to what is currently used by politicians. This exchange — getting put in his place by the creator of great horrors — really amounted to Elmo announcing the roll-out of the Twitter Blue program that he and Jack Dorsey talked about last spring.

Even in spite of getting rebuked by Stephen King, Elmo kept pitching the pay service — to the people he needs to keep on Twitter to retain its value — as a solution to problems other than that Twitter is over-leveraged.

In the process of his serial attempts to claim that forcing users to pay for what is free now, Elmo repeatedly revealed he either doesn’t understand or doesn’t much care about what brings value to Twitter, the free content from people like Stephen King. Similarly, he repeatedly claimed that his efforts to monetize Twitter were instead efforts to address things that the pinheads value, disinformation, and things he used to attack Twitter when trying to back out of the deal, the bots.

He has not admitted that the cost of Twitter Blue would now have to pay for his epically shitty business deal, on top of what it would have paid for in April, before he started his six month tantrum. How much of an $8 monthly fee amounts to bailing Elmo out of a deal that everyone knows was epically stupid?

Elmo’s top advisors aren’t any better. Here, David Sacks took a break from apologizing for Putin to ask why Jeff Bezos and other billionaires don’t give away the content that their own employees create for free, apparently not understanding that Twitter’s employees don’t create the content on offer.

All the while, both these inapt advisors and Elmo himself keep boasting as if they’re not the ones who just got their asses handed to them in a business deal.

I don’t know how this is going to go — other than downhill. Once I paint my walls I’ll start building up my presence at @[email protected]. I’ve got an account at CounterSocial but for now I’m focusing on Mastodon. I hope and expect alternatives to both will be rushed out to fill the role Twitter once did.

Until then, though, I think Elmo’s serial meltdown on Twitter is better explained by his discomfort in a new role, in which he needs to convince ordinary people and security-conscious celebrities to stay, rather than persuading venture capitalists and captive tech journalists of the brilliance of his grandiose ideas, all while trying to snooker everyone into believing that the pay system will address the problems with Twitter rather than the problems built into Elmo’s purchase of Twitter.

Elmo loathes precisely the people he needs most right now, and he loathes them, in part, because they just saw him make an epically shitty business deal, a deal so epically shitty, in part, because Elmo wanted to prevent anyone from looking at him too closely. His response to that is to invite their complaints, so long as they pay $8 to make them.

It’s a con, but for some reason Elmo thinks the people who just saw him get fleeced will fall for it.

Update: One thing I didn’t provide enough focus on in this is that — as Drew in Bronx notes — Elmo really didn’t have a choice just to pay $1 billion to get out of the deal because his other DE-based property (eg, in Tesla) could have been used to fulfill his obligations. Once he was convinced he would lose at trial, he was stuck.

I agree this is a forced marriage. But to be clear, there was absolutely no way that Musk was going to get out of it once he signed the contract. Delaware Chancery Court is its own special thing, and Musk got outlawyered at the outset because of his own impulsiveness. The (chief) Chancellor in Delaware is brilliant & tough and has no pity for white shoe law firms having to work long hours on short schedules. Also, since Tesla is a Delaware corporation, once a judgement was entered, if it wasn’t honored she would simply seize Musk’s shares in Tesla to satisfy it-no recourse for Elmo.

Update: This account of how dysfunctional Twitter has been since Elmo took over is worth reading in full, especially the description of “psychological warfare” in lieu of management.

One Blind post from a Twitter worker, viewed by The Post on Wednesday, said simply, “This level of silent treatment is totally unprofessional.” Another Twitter employee replied, “It’s not silent treatment it is psychological warfare.”


On Conspiracy

In comments, Harpie went back to Elizabeth de la Vega’s summary of conspiracy.

Since Eureka brought this up above, I figured it might be timely to post it again:

Conspiracy Law – Eight Things You Need to Know.
One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!
Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.
Three: All co-conspirators have to agree on at least one object of the conspiracy.
Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.
Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.
Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.
Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.
Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

de la Vega has been consistently good on conspiracy going back to the first failed impeachment effort and the lead up to it. I posted this at least once before, think on a post I penned, but not sure, so am going to put this out here again.

At any rate, here are a set of model jury instructions (that I have previously patterned off of for real trials) for a conspiracy case. They are for a drug case, but conspiracy is conspiracy, and the law is pretty much the same, and has long been. What Harpie cited from de la Vega is correct. But to give you a look at how it actually goes down in a court, check out actual pattern jury instructions, because real instructions are always the guide in a real criminal trial. Substitute in the elements for 18 USC §373 and 18 USC §2101, or any of the other various putative crimes being discussed ad nauseam and you will get the picture.

As you read through them, keep in mind the question of “what holes could a competent criminal defense attorney drive a truck through here given a beyond a reasonable doubt burden?”

Now would Trump acquire an actually competent criminal defense attorney were, in the unlikely event he is really charged? Now there is a great question! But, if he were to, there are currently still a LOT of holes. People are getting ahead of themselves. Read the instructions, they scan pretty fast. But keep in mind that once you charge and put a defendant, any defendant, on trial, things are not as easy as they are here or on social media.


After Wailing That No One Was Reporting on the Hunter Biden Laptop, Glenn Greenwald Is Now Wailing because Ben Collins Did

As I’ve addressed both here and on Twitter (post 1, post 2), Glenn Greenwald has written at least three error-ridden posts wailing that no one has written about the Hunter Biden laptop that Steve Bannon and Rudy Giuliani used to seed an attempted attack on Joe Biden.

In an apparent attempt to generate more subscribers to his Substack of non-stop Hunter Biden laptop posts, Glenn continues to wail about people doing actual journalism. Yesterday, for example, he attacked Brandy Zadrozny (who was recently targeted directly by Glenn’s buddy Tucker Carlson) and Ben Collins, claiming that their reporting on organized disinformation efforts,  “is not journalism: it’s quashing of dissent.”

Collins responded with a long thread of the reporting that he had done over the last year, describing along the way the victims of such disinformation.

Among those stories, Collins included a story where he reported that a month before the Hunter Biden laptop was “discovered,” a fake person was pushing it.

Just days before the election, then, Collins was doing precisely what Glenn was demanding, reporting on the Hunter Biden laptop. Only, he wasn’t telling the precise story Glenn wanted told about the “laptop.”

One month before a purported leak of files from Hunter Biden’s laptop, a fake “intelligence” document about him went viral on the right-wing internet, asserting an elaborate conspiracy theory involving former Vice President Joe Biden’s son and business in China.

The document, a 64-page composition that was later disseminated by close associates of President Donald Trump, appears to be the work of a fake “intelligence firm” called Typhoon Investigations, according to researchers and public documents.

The author of the document, a self-identified Swiss security analyst named Martin Aspen, is a fabricated identity, according to analysis by disinformation researchers, who also concluded that Aspen’s profile picture was created with an artificial intelligence face generator. The intelligence firm that Aspen lists as his previous employer said that no one by that name had ever worked for the company and that no one by that name lives in Switzerland, according to public records and social media searches.

One of the original posters of the document, a blogger and professor named Christopher Balding, took credit for writing parts of it when asked about it and said Aspen does not exist.

Glenn replied to Collins’ thread with a ridiculously dickish response, then tried to suggest that because Collins is paid by NBC, he must be a fraud.

To recap then. Glenn has spent weeks suggesting no one at big media outlets was reporting on the Hunter Biden laptop.

Collins noted that he did.

Glenn’s response to was to call him a fraud because he did that reporting at NBC.

I guess it wasn’t reporting he was really after.


The Fabulous Emptywheel Music Blog: Little Richard

Things come, and they go. And we all do sooner or later. Today, Little Richard passed. I once heard (no, I have no idea where) Keith Richards say, and I am paraphrasing only slightly, “Chuck Berry wrote all the rock and roll songs”. Paraphrasing or not, that is about right. But he should have included Little Richard.

And now Richard Wayne Penniman is gone, There have been rock performers as big, sure. But few as seminal and important as Little Richard. He was, and stands, for everything rock became in his and Chuck Berry’s forever wake.

As Rolling Stone said:

“In 2004 Little Richard wrote a profile of himself for our Immortals issue. He explained why he was so dangerous at the time — because was the first black artist whose records the white kids were starting to buy”

Yes, along with Chuck, that is exactly right. So, a little bit of Tutti Fruity for the weekend.

On another sad note, I was lazy and did not put up a thing last weekend. But our Roving Reporter Rosalind wanted to acknowledge a friend. And we shall do so now. The Covid deaths are real, and they hit home to one and all. So, a few words from Rosalind:

“While we are surrounded by sadness at the growing number of people losing their lives to Covid-19, we mourn also the everyday deaths that take away friends and family. Today I honor my longtime neighbor, Sam Lloyd, the hilarious character actor best known as the lawyer “Ted” on Scrubs. We had side-by-side parking spots at our Hollywood apartment building and caught up with each other regularly heading in and out. Beyond being one of the nicest and funniest human beings, he possessed a gorgeous singing voice, featured regularly with his four-part harmony group “The Blanks” on Scrubs. The tributes to Sam on twitter from all around the world show how far his comedic and musical powers reached. We are so fortunate to have a world of re-runs to keep us smiling, and his memory alive.

For me, I will always remember standing in line at the grocery check-out stand when Sam suddenly rushed up and asked if he could cut in line. He was headed to a show with The Blanks and realized his Commando Action Figure’s batteries were dead (those lucky to see The Blanks show in person know the Commando Action Figure is a highlight of their set). I of course let him in, and he threw down the cash and ran out batteries and Commando Action Figure in hand. Rest in peace, Sam.

Such is where we are at today. The world is going crazy and you wonder if anybody gives a damn anymore. Here, we do. Thank you for doing so along with us. There will, of course, be others. But Little Richard was special. RIP.


We Don’t Do That

Go read this article by David Roth at the Columbia Journalism Review, it is brutally true. Here is a taste, but do read the whole thing:

It all happened in the way that decline generally happens in American culture, which is one anxious, hopeful, cynical capitulation at a time. We have compressed and corroded and finally collapsed what used to be the core of a publication—its relationship with its readers, and the basic notion that one should not make it hard for them to read.

It goes without saying that everyone involved is perpetually maxed-out and stressed and scrabbling for a dwindling and finite amount of money in an arbitrary and artificially constricted ad economy that runs on wobbly, untrustable, and easily manipulated data. (A friend who works in advertising operations described the work as “a game of catching falling knives.”)

In the last half-decade, ads have rapidly migrated from the sides and top of the page into the actual text. This is the result of pressures created by the transition from desktop computers to mobile devices. The ads need to get seen on a screen with no margins.

The ads that stalk you down the page reflect advertisers’ demands that their ads remain “in view.” And all the clammy unbidden video stuff is exactly as desperate as it looks. Not many people will watch video ads if given any choice in the matter. Taking choice out of the equation helps a lot.

Some sites have deliberately made the experience of reading them for free more assaultive, in order to bully readers into buying subscriptions. For the price of a small monthly indulgence on your end, it can all go back to normal and your laptop’s fan can finally turn off.

And then take a look at the site/forum you are currently reading on, Emptywheel. There is no infinite scroll. There are no ads, pop up or otherwise. There is nothing but…..content. And it is free. If you have a few extra shekels or rubles, consider throwing them Marcy’s way (there are all kinds of links for this on the right margin). It helps. And thank you to all who come here.


Yevgeniy Prigozhin Continues to Troll Both Online and in the Courts

xkcd comic used under Creative Commons license — available online at https://imgs.xkcd.com/comics/free_speech.png

The trolls are engaging in lawfare again.

For some time, I’ve been fascinated by the way, particularly in the wake of the 2016 election tampering, Russians have engaged in lawfare to score political points against the US. There were the multiple lawsuits pertaining to the Steele dossier. There was Concord Management’s unexpected defense in the Internet Research Agency indictment. Last week, Yevgeniy Prigozhin’s trolls struck again, this time suing Facebook for deleting the account of Federal Agency of News on April 3, 2018.

I’m a bit mystified by this suit. It may be a moonshot bid to learn more about Mueller’s investigation and insinuate that Facebook is an agent of the US government. More likely, it may be as much about pressuring Facebook in Russia as it is about winning reinstatement on Facebook.

Another Prigozhin attempt to use lawfare to embarrass the US government (and their willing partner Facebook!)

As with Concord’s defense, Prigozhin has hired legit American lawyers for the lawfare. But unlike Concord’s defense, it’s not clear how seriously to take this effort. The suit complains, in significant part, that Facebook has deprived FAN of its First Amendment rights.

FAN’s publications and posts on Facebook were the exercise of its constitutionally protected freedom of speech to inform the general public of historical and current events in politics, entertainment and other areas of public interest.

Facebook violated FAN’s First Amendment rights by deleting the contents of FAN’s Facebook Page and blocking FAN’s access to its Facebook account.

Facebook took action against FAN in an effort to silence and deter FAN’s free speech.

Facebook violated FAN’s First Amendment rights solely on account of its and its members’ national origin.

As xkcd famously explained once, that’s not the way the First Amendment works. It only prevents the government from limiting speech. Facebook is a private company, and it can boot whatever users it sees fit. But FAN may be trying to do two things. First, by treating Facebook’s terms of service as a contract, it claims it fulfilled its side of the relationship, but Facebook nevertheless deleted its account.

FAN complied with the terms of the Contract by properly registering with Facebook, paying any fees that were due and complying with all applicable terms of service.

At no time did FAN violate the terms of the contract.

Despite its contractual obligation to provide FAN with access to Facebook. Facebook breached the contract by removing FAN’s Facebook account and blocking FAN’s content without a legitimate reason.

Then, by tying Facebook’s efforts to crack down on Russian trolls to US government efforts to respond to Russia’s 2016 operation, I suspect it is trying to argue that Facebook deleted FAN’s account as an agent of the US government, thereby amounting to a First Amendment violation. The very first section of the complaint’s Background description details, “Facebook and the United States Government Target Russian Websites.” Among other details to substantiate that effort, it cites:

  • The January 2017 Intelligence Community Assessment that described “a close Putin ally with ties to Russian intelligence” funding the Internet Research Agency
  • Former Facebook CISO Alex Stamos’ statements, which went overboard in trying to assure people they were hunting down all Russian influence operations, “even those with very weak signals of a connection and not associated with any known organized effort”
  • Mark Zuckerberg’s comments that Facebook was “actively working with the U.S. government on its ongoing investigations into Russian interference”

As the lawsuit lays out, when Facebook removed FAN’s account in April, both Stamos and Zuck said they were doing so solely because FAN was controlled by the Internet Research Association.

All that said, it’s still highly unlikely this will work. I’m not sure if any of the CA-specific complaints will either, but like I said, this is a moonshot.

Prigozhin’s corporate laundromat

To make the argument at all, of course, FAN has to dismiss the presumed and explicit reasons Facebook banned them, starting with the accusation that they’re tied to IRA. In part, that involves claiming that IRA was disbanded in 2016.

Upon information and belief, the IRA was liquidated on or about December 28, 2016.

It also describes the new digs FAN got in 2015, after cohabiting with IRA for a year.

At the time of FAN’s incorporation and until in or about the middle of 2015, FAN and the IRA were located in the same building at 55A Savushkina Street, Saint Petersburg, the Russian Federation, 197183.

In or about the beginning of 2015, FAN searched for new premises that would be more convenient for its business with regard to a larger space for the office premises. On July 1, 2015, FAN moved to a business center at 23J Krasnogvardeiskiy Lane, Saint Petersburg, 197342.

But it also involves denying claims made in the complaint against Elena Alekseevna Khusyaynova that was filed in September but not unsealed until October, events that post-dated Facebook’s banning of FAN by over five months. In that complaint, FBI Agent David Holt had alleged that FAN was one of the entities that helped obscure Project Lakhta’s disinformation efforts.

Beginning in or around mid-2014 and continuing to the present, Project Lakhta obscured its conduct by operating through a number of Russian entities, including Internet Research Agency LLC (“IRA”), Internet Research LLC, MediaSintez LLC, GlavSet LLC, MixInfo LLC, Azimut LLC, NovInfo LLC, Nevskiy News LLC (a/k/a “NevNov”), Economy Today LLC, National News LLC, Federal News Agency LLC (a/k/a “FAN”), and International News Agency (a/k/a “MAN”).

The complaint claims FAN has nothing to do with these efforts, in part by denying (correctly, by all public accounts) that Lakhta is a legal entity.

FAN has no knowledge of “Project Lakhta”. There is no known business or other organization in the Russian Federation that operates under such name. To the extent it is some sort of informal organization, FAN is unaware of its membership, goals or methods of operation.

FAN is not an entity within “Project Lakhta” and has no relationship with “Project Lakhta”, the IRA or GlavSet. To the contrary, FAN is a news gathering and dissemination organization. In that capacity, FAN gathers news from conventional sources and adheres to journalistic standards in its operations.

Denying any tie to IRA and Lakhta, however, also involves making claims about Khusyaynova that directly conflict with the claims in the complaint. Khusyaynova, the lawsuit claims, is FAN’s accountant, but that’s the only place she works.

Ms. Khusyaynova has been FAN’s chief accountant since at least August 2, 2016. As such, Ms. Khusyaynova has been involved in FAN’s day-to-day accounting operations, including the purchase of office equipment and furniture and payments for advertising or other business contracts as assigned by Mr. Zubarev in his capacity as the General Director of FAN.

As the Chief Accountant, Ms. Khusyaynova’s duties are akin to those of a bookkeeper in the United States. She is not an officer of FAN, does not exercise discretionary authority over the editorial content of FAN’s publications and is not aware of what stories are going to be published or not published.

To the best of FAN’s knowledge, Ms. Khusyaynova’s sole employment is with FAN. In fact, she has explicitly stated that FAN is her sole employer and that she does not provide any services to any other entity and denies any involvement with “Project Lakhta”.

FAN has no reason to believe that Ms. Khusyaynova or any of its employees were providing services to another entity, much less to an entity under the umbrella of “Project Lakhta”.

And it’s not just Khusyaynova about whom FAN must make claims that dispute those made by the US government. The complaint does the same of Aleksandra Yurievna Krylova, who was accused in the IRA indictment of planning and carrying out an intelligence gathering trip to the US in 2014.

Defendant ALEKSANDRA YURYEVNA KRYLOVA (Крылова Александра Юрьевна) worked for the ORGANIZATION from at least in or around September 2013 to at least in or around November 2014. By approximately April 2014, KRYLOVA served as director and was the ORGANIZATION’s third-highest ranking employee. In 2014, KRYLOVA traveled to the United States under false pretenses for the purpose of collecting intelligence to inform the ORGANIZATION’s operations.

[snip]

Only KRYLOVA and BOGACHEVA received visas, and from approximately June 4, 2014 through June 26, 2014, KRYLOVA and BOGACHEVA traveled in and around the United States, including stops in Nevada, California, New Mexico, Colorado, Illinois, Michigan, Louisiana, Texas, and New York to gather intelligence. After the trip, KRYLOVA and BURCHIK exchanged an intelligence report regarding the trip.

Here, the lawsuit has a bit more difficulty just dismissing ties. It admits that Krylova was the founder and first director of FAN, but in that passage of the lawsuit declines to mention when that was.

The founder and first General Director of FAN was Aleksandra Yurievna Krylova. The Special Counsel has alleged that Krylova was an employee of the IRA from in or around September 2013 to in or around November 2014. FAN has no knowledge of this allegation and therefore does not know if it is accurate or not.

But as the lawsuit admits elsewhere, FAN was incorporated on May 22, 2014.

On May 22, 2014, FAN was incorporated in order to satisfy public needs of Russian and foreign legal entities and individuals by way of gathering, transmitting and supplying domestic and international news reports and other publications of public interest.

So at the time Krylova traveled to the US (while hiding her true purpose, thereby committing visa fraud), she had just recently formed FAN.

All this is no big deal, the lawsuit suggests, because FAN doesn’t know anything about it and besides it has been a long time.

Anna Vitalyevna Botneva succeeded Krylova as General Director of FAN, on November 17, 2014, and on December 24, 2014, Krylova sold 100% of the company’s shares to Botneva.

[snip]

At the time of Ms. Krylova’s indictment, she had no connection with FAN for more than three years.

At the time of Krylova’s indictment, of course, she also had had no connection with IRA for the same length of time.

FAN is silent about how long Botneva ran the show and how long she remained the sole shareholder. What it does make clear is that Evgeniy Lvovich Zubarev — the guy who’s being fronted as a plaintiff and the one who presumably would be asked to claim to have ignorance of IRA’s ties to FAN and Khusyaynova’s day job — became the sole shareholder last year.

Since August 2, 2016, Evgeniy Lvovich Zubarev has been the General Director of FAN, and since April 5, 2017, he has been the sole shareholder of the company.

In preparation of the Concord Management challenge of the IRA indictment, Prigozhin got himself named the director, which would give him the opportunity to claim to need to review discovery. This feels like the opposite: the creation of a figurehead who can claim to be dumb and dissociated from Prigozhin’s other efforts.

I highly doubt this well get very far (in part, because FAN would have to provide better proof than it has provided that these things are true).

A set-up to claim Facebook is conducting influence operations in Russia

Which finally brings us to where I think this is going. A First Amendment claim here in the US is unlikely to get anywhere, though it does give Russian propagandists an opportunity to claim Russia is being deplatformed by American social media along with the Nazis and terrorists.

But how Russia will use this argument within Russia is another matter. The lawsuit describes its injury, in part, in terms of a loss of access in Russia.

As of October 2018, FAN is ranked among the Top 35 most visited websites in Russia by LiveInternet, one of the largest Russian internet blogging platforms; among the Top 20 by Mail.ru, a Russian internet company which reaches approximately 86% of Russian internet users per month; and among the Top 25 by Rambler, a Russian search engine and one of the biggest Russian web portals.

Many of FAN’s subscribers are also Facebook users who for at least the past four years were able to access FAN through Facebook and who did, in fact, access FAN through Facebook.

That is, FAN is making an argument that it has lost Russian readers, not just American ones, because of Facebook’s actions.

And, in the last line of the introduction, the lawsuit uses language that (I could imagine) Russia might use in the future to accuse Facebook of conducting its own influence operations.

Facebook seeks to dictate news content based upon its own political view point thereby attempting to influence the public media coverage of internal political events in the Russian Federation.

After laying out a claim that Facebook was acting as an agent of the US government in cutting off trolls, it ends with a suggestion that Facebook’s real goal here is to influence “internal political events” within Russia.

That, I suspect, is the real purpose of this effort, setting up a future attack against Facebook operating in Russia.


Mueller to Yevgeniy Prigozhin: Sure You Can Have Discovery … If You Come to the United States to Get It

This Concord Management filing, from Mueller’s team, is attracting a lot of attention because Mueller predictably asked for a protective order and said Russians are still engaging in information operations (so are we!!). Since we covered the certainty that there’d be a protective order in this case over a month ago, I’m going to focus on some other interesting tidbits about this filing.

As a reminder, Concord Management is a company owned by close Putin ally Yevgeniy Prigozhin. Concord is accused in the Internet Research Agency indictment of funding the troll operation.

Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

[snip]

To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

The indictment accuses Prigozhin of supervising the operation closely enough to have been saluted by troll operations in the US.

PRIGOZHIN approved and supported the ORGANIZATION’s operations, and Defendants and their co-conspirators were aware of PRIGOZHIN’s role.

For example, on or about May 29, 2016, Defendants and their co-conspirators, through an ORGANIZATION-controlled social media account, arranged for a real U.S. person to stand in front of the White House in the District of Columbia under false pretenses to hold a sign that read “Happy 55th Birthday Dear Boss.” Defendants and their co-conspirators informed the real U.S. person that the sign was for someone who “is a leader here and our boss . . . our funder.” PRIGOZHIN’s Russian passport identifies his date of birth as June 1, 1961.

When Concord moved to defend itself, it presented the possibility that it and Prigozhin would obtain discovery, and via Prigozhin, everyone else in Russia who was part of this operation, up to and including Putin. Indeed, the Mueller filing makes it quite clear that is the intent of the defense attorneys. They explicitly asked to share information with co-defendants that serve as officers of Concord, which can only mean they want to share information with Prigozhin.

In its initial proposed protective order, the government proposed a complete prohibition on sharing discovery with any co-defendant charged in this criminal case, whether individual or organizational. Defense counsel proposed that they be permitted to share discovery with a codefendant if that co-defendant is an officer or employee of Concord Management. To the government’s knowledge, the only charged defendant in this category is Yevgeniy Viktorovich Prigozhin, who was charged individually for conspiring to defraud the United States, in violation of 18 U.S.C. § 371.

So this dispute over the protective order is an effort to continue with the prosecution, while ensuring that Russia doesn’t obtain important information on the investigation into the operation by doing so.

Before I get into how Mueller’s team proposes to resolve the dispute, it’s worth reviewing the data in question, because that’s actually one of the most interesting parts of this filings. Apparently, the government used no classified information in the investigation of social media trolling (or parallel constructed whatever they did use).

As described further in the government’s ex parte affidavit, the discovery in this case contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. [my emphasis]

Later, the filing makes it clear that much of the evidence in the case came from US providers — surely Facebook and Twitter and others.

The evidence includes data related to hundreds of social media accounts, as well as evidence obtained from email providers, internet service providers, financial institutions, and other sources. Additionally, the need to produce much of the data in its original format (formats that include, for example, Excel and HTML files) makes it infeasible to make certain redactions without compromising expeditious review of the data.

These two details confirm a point I made in March: this indictment really doesn’t rely on information as secret as many reporters claimed. It relies on stuff you get from social media providers.

And contrary to what NBC says about the heavy reliance, in the Internet Research Agency indictment, “on secret intelligence gathered by the CIA, the FBI, the National Security Agency (NSA) and the Department of Homeland Security (DHS),” it really wasn’t all that sophisticated from a cybersecurity standpoint. Especially not once you consider the interesting forensics on it (aside from IDing the IRA’s VPNs) would have come from Facebook and Twitter.

That detail — that much of this indictment comes from the social media providers that Russia exploited in 2016 — is important background to this passage (this is the one that has gotten all the press), which asserts that Russia continues to do what Prigozhin’s trolls did in 2016.

Public or unauthorized disclosure of this case’s discovery would result in the release of information that would assist foreign intelligence services, particularly those of the Russian Federation, and other foreign actors in future operations against the United States. First, the substance of the government’s evidence identifies uncharged individuals and entities that the government believes are continuing to engage in interference operations like those charged in the present indictment. Second, information within this case’s discovery identifies sources, methods, and techniques used to identify the foreign actors behind these interference operations, and disclosure of such information will allow foreign actors to learn of these techniques and adjust their conduct, thus undermining ongoing and future national security investigations.

And that, in turn, explains much of the logic for the larger protective order request: the government is trying to prevent Prigozhin and through him Putin from learning what the US is doing to counter its information operations.

The government’s description of what it considers “sensitive” information that it wants to require a special review before sharing with foreign nationals reveals it is also trying to prevent Prigozhin and others from learning about the status of the investigation and its targets.

a. Witness statements provided pursuant to 18 U.S.C. § 3500;

b. Information that could lead to the identification of potential witnesses, including civilian, foreign and domestic law enforcement witnesses and cooperating witnesses;

c. Information related to ongoing investigations, including information that could identify the targets of such investigations; and

d. Information related to sensitive law enforcement or intelligence collection techniques.

Finally, the government is trying to hide what it knows about relationships between parties involved in this operation and “other uncharged foreign entities and governments.”

At a high level, the sensitive-but-unclassified discovery in this case includes information describing the government’s investigative steps taken to identify foreign parties responsible for interfering in U.S. elections; the techniques used by foreign parties to mask their true identities while conducting operations online; the relationships of charged and uncharged parties to other uncharged foreign entities and governments; the government’s evidence-collection capabilities related to online conduct; and the identities of cooperating individuals and, or companies. Discovery in this case contains sensitive information about investigative techniques and cooperating witnesses that goes well beyond the information that will be disclosed at trial. [my emphasis]

So one thing the government wants to protect is what it knows about the relationship between Prigozhin and Putin, and the Russian government’s involvement in this trolling operation more generally.

And to do that, the government is demanding the ability to prohibit Concord’s lawyers from sharing information with Prigozhin (or any other defendant) without prior court review.

Notwithstanding the previous categories of authorized persons, no co-defendant charged in this criminal case, whether individual or organizational, shall be deemed an authorized person for purposes of discovery until the co-defendant appears before this Court. Defense counsel shall not disclose or discuss the material or their contents to any co-defendant charged in this criminal case, whether individual or organizational, until the co-defendant appears before this Court unless otherwise directed by this Court. If defense counsel, after reviewing discovery in this matter, believes it necessary to seek to disclose or discuss any material with a co-defendant who has not appeared before this Court, counsel must first seek permission from this Court and a modification of this Order.

Perhaps more interesting, it is demanding that Concord’s lawyers keep anything deemed sensitive in the US, firewalled from the Internet.

Neither defense counsel nor any person authorized by this Court is permitted at any time to inspect or review Sensitive materials outside of the U.S. offices of Reed Smith LLP, without prior permission from of this Court. Defense counsel or a designated and identified employee of Reed Smith LLP must accompany any person at all times while he or she is reviewing Sensitive materials at U.S. offices of Reed Smith LLP, unless otherwise authorized by this Court.

[snip]

Sensitive materials shall not be viewed or stored on any device that is connected to or accessible from the Internet.

Sensitive materials may under no circumstances be transported or transmitted outside the United States.

The logic here is nifty: even if they lose on the ability to protect all materials from Prigozhin, they’ve already succeeded in requiring that he come to the US if he wants to read it. At which point, he’d be met by authorities at customs and promptly put in custody.

On one point I was mistaken. I thought there would be classified discovery of some sort, that would require the use of the Classified Intelligence Protection Act procedures. It will apparently never get to that. The government will either win on this protective order, which will largely moot much of the logic for Concord to contest the case, or it will lose, which will likely lead it to dismiss the indictment against Concord.

Update: Fixed protective for protection, h/t mw.


Yet More Proof Facebook’s Surveillance Capitalism Is Good at Surveilling — Even Russian Hackers

I’ve long tracked Facebook’s serial admission to having SIGINT visibility that nearly rivals the NSA: knowing that Facebook had intelligence corroborating NSA’s judgment that GRU was behind the DNC hack was one reason I was ultimately convinced of the IC’s claims, in spite of initial questions.

Among all his evasions and questionably correct answers in Senate testimony yesterday, Mark Zuckerberg provided another tidbit about the visibility Facebook had on the 2016 attacks.

One of my greatest regrets in running the company is that we were slow in identifying the Russian information operations in 2016. We expected them to do a number of more traditional cyberattacks, which we did identify, and notified the campaigns, that they were trying to hack into them. But we were slow to identifying [sic] the type of new information operations.

Not only did Facebook see GRU’s operations in real time, but they notified “the campaigns” about them.

Note, Zuck didn’t describe the targets in any more detail than “campaigns.” That led Robby Mook to dispute Zuck, eliciting more details from Facebook CISO Alex Stamos.

Aside from illustrating how routinely those involved in and covering the 2016 hacks confuse the possible affected targets (resulting in some real misunderstanding of what happened), Stamos’ clarification provides important new details: these hacks affected both the DNC and RNC’s key employees, and Facebook alerted the FBI (something we’ve previously heard).

The DNC likes to claim they never got any warning they were being hacked. But apparently, in addition to the FBI’s serial attempts to lead them to discover Russia was hacking them, Facebook let them know too.

Elsewhere in his testimony, Zuck got coy about the degree to which Facebook remains involved in the Mueller investigation, a fact that should have been obvious to anyone who has read the Internet Research Agency indictment, but which numerous news outlets treated as news anyway.

Facebook has a lot to answer for (this David Dayen piece on yesterday’s testimony is superb).

But one thing that has continued to trickle out is that Facebook’s surveillance capitalism is good at what it’s designed for: surveillance, including of Russian hackers.

Copyright © 2023 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/blogs-internet-and-new-media/page/2/