Apr
21

Social Media and the Mueller Report -- Who's Being Investigated?

I’ve been watching the baubleheads on the networks discuss the Mueller report, and I’m disappointed. From the left, cries for impeachment. From the right, claims of exoneration. And from the center, a wary appraisal – President Trump was never going to charged with obstruction, the Justice Department doesn’t, as a policy matter, indict sitting presidents.

            Political operatives are murmuring: to impeach, or not, that is the question. How will it all effect the 2020 election?

            This is white noise, sound and fury signifying nothing. 

            The real significance of the report is in its redactions, and its refusal to publicize certain material for fear such disclosure would harm ongoing investigations.

            These redactions – large, blacked-out sections of text -- are particularly evident in the section describing the investigation of Russian use of social media to manipulate the 2016 elections and to sow discord in the United States. Do Black Lives Matter? Da or nyet, depending on whose pressing your buttons.

            To date, I’ve not seen any of the talking heads spend any real time on the social media section. For my money, this is where the action is. Presidents come and go, and political jaw-snapping is a sport for the political leisure class. The rest of us live in a world bounded by our immediate fears, hopes and expectations. We’re all dancing to algorithmic tunes set by others.

            So what does Mueller’s report have to say about social media?

            The Russians, acting through the Internet Research Agency, IRA, have been busy recruiting trolls in the United States. As described in the heavily redacted page 18 of the report – all that is not blacked out is footnote 28: “The term ‘troll’ refers to internet users – in this context, paid operatives – who post inflammatory or otherwise disruptive content on social media or other websites.”

            An example of the IRA’s use of these paid operatives: “Use any opportunity to criticize Hillary…” I can’t help but wonder whether Pizzagate was the brainchild of some IRA apparatchik.

            The IRA relied heavily on Facebook and Twitter to influence internet users. According to the report, a Facebook executive admitted in testimony before Congress that 470 IRA-controlled accounts posted some 80,000 messages from January 2015 through August 2017, reaching as many as 123 million Facebook users. The report cites a Twitter spokesman’s statement that acknowledges as many as 3,814 IRA-controlled Twitter accounts and 1.4 million Twitter users in contact with IRA-controlled accounts. 

            The report discusses the use of bots, devices that automatically transmit messages, clogging the internet with chatter – hate multiplied by the mad frenzy of the digital behemoth that is at once invisible but all around us.

            Apparently, there is an ongoing investigation of social media. Time and again, the social media section is redacted, the phrase Harm to Ongoing Matter, or sometimes, if space is short, “HOM,” typed in to explain the redactions.

            I’m ambivalent about the investigation of social media users.

            The first amendment gives us all the right to be as crazy as we want to be. Just this past week, Anna Merlan’s, Republic of Lies: American Conspiracy Theorists and Their Surprising Rise to Power, was released. Bottom line:  from coast to coast, we’re up to our eyeballs in crazy conspiracy theories. Whether it’s a belief the Russians are out to get us, our Government is out to get us, or aliens are really in control, the puzzling fact of the matter is that conspiracy theories are alive and surprisingly well in the United States. They meet a need, they are the theodicy of the dispossessed. Distrustful people don’t stop looking for answers.

          Candidly, I am less fearful of the conspiracy theorist armed with the right to speak than I am of the censor armed with guns, warrants and the concerted power of the state. The antidote to speech, whether it be hateful or merely crazy, is more speech. But the internet changes things – ideas once at the margins become centers of idiosyncratic silos. We feed on one another’s dark imaginings.

            Just what is the internet? Who controls it?

            The Mueller report begs the real question. Who controls big data, the algorithms that chart our every move, gesture, and, increasingly, seek, through affective computing, to forecast our emotional reaction to things?  In the brave new world we now inhabit, data capitalists harvest data about us from every keystroke, seeking the better to predict what we will like, do and think in every conceivable circumstance. This behavioral economics yields an important corollary – the ability to control.

            Lest you think I am paranoid, the past paragraph is a mere restatement of the research recently published by Shosana Zuboff in her masterful The Age of Surveillance Capitalism, a book that aspires to be the Das Kapital of the digital era. Zuboff is no conspiracy theorist: she is a professor at the Harvard Business School.            

            Surveillance capitalism, she writes, aims at nothing less than total control by means of harvesting surplus data each of us leave behind whenever we interact with the online world, either through email, viewing digital material, or use of the Internet of Things. Data about us is harvested, crunched by smart machines, and algorithms used to intrude into every aspect of our lives, the better to control us by third parties, the better to sell us products, and, perhaps, control us.

            You see, long before the IRA sought to influence the 2016 elections, Facebook was doing experiments about how to influence voters. The New York Times reported just the other day that Facebook spends $22 million a year to provide security for Mark Zuckerberg, Facebook’s founder. As I read the Mueller report and Zuboff, I concluded the son-of-a-bitch needs the security. He’s arguably the most dangerous man in American just now.

            I appeared on Alex Jones’s Infowars the other day. Jones is a client of mine who has been banned from social media – the digital overlords don’t like what he has to say. I told him that I thought it was no coincidence that Julian Assange was busted a matter of days after Mark Zuckerberg called for greater regulation of the Internet in an opinion piece in The Washington Post. Wikileaks seeks transparency at all costs. Jones called me “quirky.” “Great,” I thought, “one of the nation’s leading conspiracy theorists thinks I’m quirky.”

            But what if the likes of Alex Jones are only half right? What if all this bitching and moaning about impeachment is merely bread and circuses for we the digital mob? I want to see what’s been redacted about social media from the Mueller report. I suspect the disturbing truth is that we, and our votes, are manipulated not just by the Russians, but by the algorithmic overlords who seek to predict our every move, one keystroke at a time.


Mar
27

The Censors Take Aim At Alex Jones

            Within hours of Alex Jones and Infowars providing thousands of emails to lawyers for the plaintiffs in a lawsuit brought by surviving family members of the mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut, in 2012, the Huffington Post contacted Mr. Jones. We have your emails, they said. We’re going to publish them. Do you want to comment?

            And when lawyers for Mr. Jones went to court in Connecticut this week, NPR read the pleadings filed by the plaintiffs before Mr. Jones had a chance to do so. NPR didn’t call to ask for comment. It just read the plaintiffs’s pleading and ran with it as breaking news.

            Just who leaked this material to the press in an effort to keep the press at Mr. Jones’s throat isn’t clear, even if no one will admit to having done so. Indeed, one of the law firms involved in this litigation regularly holds press conferences, replete with a blue background for a stage worthy of the Academy Awards, the firm’s name blazoned on the screen for all to see, no matter what is being said.

            There is no mob quite so dangerous as a self-righteous mob, and, believe me, there’s a mob of would-be censors ready to limit free speech in the name of what makes them comfortable.

            And then there is Senator Chris Murphy of Connecticut. Did a father of one of the Newtown child victims commit suicide this week? It's Alex Jones’s fault, the Senator said, before any facts were known. Murphy’s a one-trick pony, having ridden the Sandy Hook shootings all the way from obscurity to the U.S. Senate.

            It’s open season on Alex Jones. He’s unpopular, and the forces of righteousness are aligned against him. Mr. Jones’s speech, we are told, is toxic. It must be stopped. Google, YouTube, Facebook, Twitter have de-platformed Mr. Jones.

            But still Mr. Jones and Infowar continue to broadcast.

            What’s all this about?

            It’s about the marketplace of ideas. What critics of Mr. Jones fail to realize is that ideas matter. People listen to Mr. Jones because he provides them with a forum. Some of the things folks say to Mr. Jones, some of the things Mr. Jones says, make folks uncomfortable. No one is forced to listen to Mr. Jones. No one is forced to watch InfoWars. People do so because they find something they need there.

            Rather than attacking the messenger, folks ought to ask what forces in American life make the message appealing.

            I represent Mr. Jones and InfoWars in Connecticut lawsuits brought by surviving family members of victims in Sandy Hook. A separate suit is filed by surviving family members in Texas. Both suits are based on the premise Mr. Jones spread the opinion that Sandy Hook never happened. That crisis actors played roles to create mass hysteria. That the government benefits from this hysteria by making it easier to do such things as limit the right to bear arms.

            This is an outlandish form an old genre in American life – the conspiracy theory. Indeed, the Connecticut complaints against Mr. Jones read in part like an undergraduate term paper, replete with a footnote to Richard Hofstadter’s The Paranoid Style in American Politics, published in 1964. The plaintiffs’s lawyers don’t realize that Hofstadter is Exhibit A in Mr. Jones’s defense – conspiracy theory is old news in American life. Doubt it? Look at the back of a dollar bill and try to explain all the symbolism on it.

            I’ll leave to the courtroom battle the case involving Mr. Jones. Among the questions to be addressed in that case: Did Mr. Jones host others on a talk show who called Sandy Hook a hoax? If so, isn’t that protected speech? Did Mr. Jones entertain the possibility that it was a hoax, after listening to guests on his show? If so, isn’t that protected speech? Did some people who viewed Mr. Jones’s broadcasts then harass surviving family members of Sandy Hook? If so, what strained theory of causation makes that the fault of Mr. Jones? And if Mr. Jones did believe the shooting was a hoax, how is that different from believing the government killed JFK?

            And then there is the central question: How many of the allegations now hurled causally at Mr. Jones are about things he actually said? Some of the allegations now have the status of urban legend. Mr. Jones has become a cipher, a symbol for the hatred of the self-righteous.

            There was a time when victims of the horrific were honored, pitied, and provided the time and space they needed for respectable grief. Today victims become instant celebrities and props for the political interests of others. Enterprising victims become spokespersons and public figures. We’ve weaponized pathos. It’s small wonder the misused victims feel even more crushing despair when the glare of sympathy is redirected to newer, more fashionable and au courant victims.

            We used to say that no person could be a judge in their own case. Now we flock to the aggrieved to let them pass judgment on the rest of us. Is it any wonder our politics is rudderless and empty suits like Chris Murphy can ride a national tragedy to national office?

            I’ve taken to watching Infowars as I prepare to defend Mr. Jones and his companies. Here’s what I have learned thus far – people watch the show, and then call in to the show, to be heard. Mr. Jones listens. He is a far more reasonable listener than many of the callers. Where will these callers go if censors succeed in silencing Infowars?

            One theory of freedom of speech is that it serves the purpose of finding the truth by testing ideas in the marketplace of ideas. Hence, the antidote to hateful speech is not enforced silence, but more speech. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence,” The Supreme Court wrote in Whitney v. California, a 1927 decision upholding the right of a Communist to advocate overthrow of the United States government. The same rationale led the American Civil Liberties Union to defend the right of Nazis to march in Skokie, Illinois, through a community of holocaust survivors.

            ACLU has retreated today behind a barrier of cowardice, preferring comfortable conformity and solicitude for the censor to the risks that free speech imposes. We are all worse off as a result.

            So keep an eye on the Huffington Post. Rest assured that the tongue-clucking editors will select the most outrageous emails they can find. Look! Their pieces will scream. Look at these outrageous ideas! Did the CIA really stage Sandy Hook!? They will ridicule. All this in support of some version of orthodoxy.

            I am far less frightened by the cranky opinions of the village eccentric than I am by the demand of the censor. From social media comes the avalanche of hate, either from the left of the right  -- not long ago I was labeled racist after posting a picture I thought funny; not one of those who were so quick to scorn me actually critically engaged in a discussion of what made a photo of beer bottles into a sign of racism. Politicians want more. They want limits on speech. On what can be said and how it can be said. You know where that leads, don’t you? To censorhip.

            I can ignore the crank. I don’t have to watch Infowars or MSNBC. But the government official with a warrant is harder to ignore. To the government I must yield my liberty, even my life. The government scares me in a way Alex Jones never will.

            I expect to win the Alex Jones lawsuit. Not because his speech is popular – it is not in the communities close to Sandy Hook. I expect to win it because there is a long history of freedom of expression, even of crazy conspiracy theories, in the United States. Mr. Jones isn’t an outlier. What’s changed is our political culture. Perhaps a goodly number of Americans are prepared to sacrifice the First Amendment on an altar of solicitude. I’m betting – and hoping -- that won’t happen in the case against Infowars, regardless of what the Huffington Post publishes in the days to come.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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