Federal judge rules public officials blocking the public on Twitter violates the First Amendment

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When the president or others with access to his Twitter account block American citizens from following @realDonaldTrump based upon the viewpoints they express, it violates their First Amendment rights.

In a historic decision, a federal judge ruled today that it is unconstitutional for President Donald J. Trump to block his critics on Twitter, as portions of @realDonaldTrump account constitute a public forum, which means blocking them based on their political speech violates the First Amendment:

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.

This is a historic win for the First Amendment and the public’s right to access official statements and participate in public discourse regarding those statements.

As I highlighted last year, tweets by @realDonaldTrump are official statements from the President, which means that the public has a right to equal access and participation around them, even when their speech is hosted on a private platform. The public interest argument was clear then:

“A president’s statements are not just made for people who voted for him or support his policies or politics.

Unfortunately, Trump is not alone: other local, state and federal politicians are also blocking their constituents on Twitter.

Doing so sends the wrong message to the public about whom they serve. Listening and responding to members of the public that they represent is a minimum expectation for public servants in any democratic state, whether those voices are raised in protest, petition, email, send letters or reply on social media. While there are practical challenges to making sense of millions of emails, tweets, call or letters, blocks are not the solution to filter failure.”

No President should block Americans from reading his official statements, replying or interacting with others here.

No other public servant should block constituents, either, from city councilors and alderman to judges, governors and mayors.

On Twitter, officials and politicians who have blocked constituents now consider policies to Mute accounts if someone is being vile or abusive, with transparency about guidelines and use. Users who abuse one another are already subject to accountability for violations of @Twitter rules, which could be reported by officials or civil society.

As the judge noted, addressing President Trump blocking people is legally tricky.

While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.

President Trump should acknowledge the ruling and follow the law, unblocking everyone. Whether he’ll embrace such a change on his social platform of choice isn’r clear at all — especially given his refusal to follow security protocols for his iPhone, despite the risk of nation states spying on him.

In the wake of this ruling, the president should acknowledge the ruling in a video & tweeted post, work with Twitter to unblock everyone, and apologize for engaging in viewpoint-based discrimination and chilling the speech of his constituents, the American public.

But I doubt Trump will.

So, here’s a different idea. It would be an unprecedented move for an unprecedented presidency, but I hope Jack Dorsey and his board will seriously consider removing the Block feature from all official government accounts verified by Twitter.

If code is law and law is now encoded, one way for Twitter to embrace its DNA as a 21st century platform for free speech and make open, public access to official statements the default, putting pressure on Facebook, Google and others to follow.

After a false positive, Twitter suspends open government blog for being too social

Twitter’s best practices for tweeting don’t appear to mix well with its rules for tweeting, as I found out last month when the social networking company briefly suspended the Twitter account for this blog. While I was able to quickly get the account back online, the episode raises somr issues regarding how Twitter’s algorithm flags media accounts and some contradictions in the company’s guidance for new users.

When I found that I couldn’t file a help request to Twitter Support to appeal the suspension of @e_pluribusunum_ through that account, I used my main account (@digiphile).

Initially, I thought the suspension was due to spam, similar to the situation David Seaman encountered in 2011.

After I directly contacted Twitter for help, the account went back online later that day:

As I found out days later, however, the suspension was for “sending multiple unsolicited @replies or mentions,” per the statement I have from Twitter Support on @e_pluribusunum_:
“This account was suspended for sending multiple unsolicited @replies or mentions. Twitter monitors the use of these features to make sure they’re not abused. Using either feature to post messages to other users in an unsolicited or egregious manner is considered an abuse of its use, which results in account suspension. You can find more information about @replies and mentions here:https://support.twitter.com/articles/14023-what-are-replies-and-mentions

I have now unsuspended your account. Please note that it may take an hour or so for your follower and following numbers to return to normal. Be sure to review the Twitter Rules, as repeat violations may result in permanent suspension: http://twitter.com/rules”

suspension-notice

The tweets in question, however, are extremely similar to the way I’ve been using Twitter for years, advise others to use Twitter, and that Twitter itself recommends to new users.

Here are the tweets sent the day before the suspension and the three that morning, which I have to assume triggered the suspension.

The seventh tweet, embedded above, had six different @names in it, but it was appropriate: I was attributing the source of the information, referring to an NPR program (The Kojo Nnamdi Show) and naming the 4 guests who were on it. The eighth tweet had three @mentions in it, as I had retweeted a media account that referred to a reporter and added the subject of the story for context.

So: Were there a lot of @mentions? Yep. Were they “unsolicited?” Yep.  That accurately describes tens of thousands of tweets that I’ve sent over the past seven years. In this case, they were far from “abuse.”

That led me to wonder how many people, journalists, government or media companies or nonprofit organizations a Twitter account is allowed to @mention before it’s suspended. Should any of the categories of users I listed now have to actively ask followers for feedback or allow others to talk about them? That doesn’t seem practical nor scalable. Are there different rules for different users, Verified or not? (I’ve asked Twitter for comment on these general questions but have received no answers after two weeks. I will update the post if I do.)

In the meantime, I’ve tried to think them through myself. The “newness” of this account likely tripped Twitter’s automated filter, leading to the suspension. That means that other new users have to think about whether they’re sending “unsolicited replies or mentions” to keep clear.

I found that deeply jarring. I used the @E_Pluribus Unum_ account exactly as I have @digiphile, for over 7 years now, resharing tweets with attributed context and quotes, tweeting about public figures and government officials, tagging mastheads, retweeting select tweets.

That’s more or less how I define being “social” and engaging on the platform. That’s how I thought Twitter defined it, too. Twitter’s own best practices for engaging followers recommends it:

Mention high-profile users
@HillaryClinton included Secretary of State Madeleine Albright username@madeleine in a Tweet welcoming the former Secretary to Twitter. In turn, Albright replied to @HillaryClinton and also mentioned the Kennedy Center (@kencen), where she had recently performed. Including so many mentions of other users makes it more likely that people will find the conversation and join in. ”

If Twitter is suspending new accounts that @mention too many high profile users or reply to them in an “unsolicited” fashion, I can’t help but have serious concerns about Twitter’s future and commitment to being a platform for free expression, government accountability, or hosting civic dialogue.

I do see potential issues with “egregious” @mentions — “@reply spam” has been an issue on Twitter for years — but isn’t that exactly what the block button has been used for, or the new abuse reporting button should be used for? People have been tweeting “#FollowFriday” recommendations for years with many unsolicited @mentions. Are they risking suspension?

Honestly, knocking new accounts offline for being “too social” suggests a tone-deaf algorithm. Ignoring my questions regarding general standards suggests something else. (The company generally refuses to comment on individual accounts.)

Given reports of retention issues and low activity by most users, an overly aggressive approach to filtering new users that are engaging in activity that Twitter itself recommends, particularly media accounts, strikes me as actively self-defeating.

Twitter and its investors should care about the people who never tweet. This experience reminded me that those same parties should care about the people who do tweet and are caught up on algorithmic censorship, followed by vague missives not to talk about other accounts too much.

As I’ve written before, Twitter is not a public utility. It’s a private company with a Terms of Service and Rules it itself sets.  If Twitter’s users don’t like them or lose trust, their option is to stop using the service or complain loudly on other platforms.

In general, Twitter’s record on censorship, Internet freedom and privacy is the best of the big tech companies, as an analysis by the Electronic Frontier Foundation last year highlighted. They’ve gone to bat for their users, from Turkey to Washington. Today, however, I just wish they’d clarify how social those users are allowed to be.

Editor’s Note: The headline of this post has been amended, with “After a false positive” added.

Intelligence community turns to Tumblr and Twitter to provide more transparency on NSA surveillance programs


Yesterday afternoon, the Office of the Director of National Intelligence began tumbling towards something resembling more transparency regarding the National Security Agency’s electronic surveillance programs.

The new tumblog, “Intelligence Community on the Record,” is a collection of  statementsdeclassified documents, congressional testimony by officials, speeches & mediainterviewsfact sheets, details of oversight & legal compliance, and video. It’s a slick, slim new media vehicle, at least as compared to many government websites, although much of the content itself consists of redacted PDFs and images. (More on that later.) It’s unclear why ODNI chose Tumblr as its platform, though the lack of hosting costs, youthful user demographics and easy publishing have to have factored in.

In the context of the global furor over electronic surveillance that began this summer when the Washington Post and Guardian began publishing stories based upon the “NSA Files” leaked by former NSA contractor Edward Snowden, the new tumblr has been met with a rather …skeptical reception online.

Despite its reception, the new site does represent a followthrough on President Obama’s commitment to set up a website to share information with the American people about these programs. While some people in the federal technology sector are hopeful:

…the site won’t be enough, on its own. The considerable challenge that it and the intelligence community faces is the global climate of anger, fear and distrust that have been engendered by a summer of fiery headlines. Despite falling trust in institutions, people still trust the media more than the intelligence community, particularly with respect to its role as a watchdog.

Some three hours after it went online, a series of new documents went online and were tweeted out through the new Twitter account, @IConTheRecord:

The launch of the website came with notable context.

First, as the Associated Press reported, some of the documents released were made public after a lawsuit by the Electronic Frontier Foundation (EFF). In a significant court victory, the EFF succeeded in prompting the release of a 2011 secret court opinion finding NSA surveillance unconstitutional. It’s embedded below, along with a release on DNI.gov linked through the new tumblr.

The opinion showed that the NSA gathered thousands of Americans’ emails before the court struck down the program, causing the agency to recalibrate its practices.

Second, Jennifer Valentino and Siobhan Gorman Carpenter reported at The Wall Street Journal that the National Security Agency can reach 75% of Internet traffic in the United States. Using various programs, the NSA applies algorithms to filter and gather specific information from a dozen locations at major Internet junctions around North America. The NSA defended these programs as both legal and “respectful of Americans’ privacy,” according to Gorman and Valentino: According to NSA spokeswoman Vanee Vines, if American communications are “incidentally collected during NSA’s lawful signals intelligence activities,” the agency follows “minimization procedures that are approved by the U.S. attorney general and designed to protect the privacy of United States persons.”

The story, which added more reporting to confirm what has been published in the Guardian and Washington Post, included a handy FAQ with a welcome section detailed what was “new” in the Journal’s report. The FAQ also has clear, concise summaries of fun questions you might still have about these NSA programs after a summer of headlines, like “What privacy issues does this system raise?” or “Is this legal?”

The NSA subsequently released a statement disputing aspects of the Journal’s reporting, specifically the “the impression” that NSA is sifting through 75% of U.S. Internet communications, which the agency stated is “just not true.” The WSJ has not run a correction, however, standing by its reporting that the NSA possesses the capability to access and filter a majority of communications flowing over the Internet backbone.

Reaction to the disclosures has fallen along pre-existing fault lines: critical lawmakers and privacy groups are rattled, while analysts point to a rate of legal compliance well above 99%, with now-public audits showing most violations of the rules and laws that govern the NSA coming when “roamers” from outside of the U.S.A. traveled to the country.

Thousands of violations a year, however, even if they’re out of more than 240,000,000 made, is still significant, and the extent of surveillance reported and acknowledged clearly has the potential to have a chilling effect on free speech and press freedom, from self-censorship to investigative national security journalism. The debates ahead of the country, now more informed by disclosures, leaks and reporting, will range from increased oversight of programs to legislative proposals to update laws for collection and analysis to calls to significantly curtail or outright dissolve these surveillance programs all together.

Given reports of NSA analysts intentionally abusing their powers, some reforms to the laws that govern surveillance are in order, starting with making relevant jurisprudence public. Secret laws have no place in a democracy.

Setting all of that aside for a moment — it’s fair to say that this debate will continue playing out on national television, the front pages of major newspapers and online outlets and in the halls and boardrooms of power around the country — it’s worth taking a brief look at this new website that President Obama said will deliver more transparency into surveillance programs, along with the NSA’s broader approach to “transparency”. To be blunt, all too often it’s looked like this:

…so heavily redacted that media outlets can create mad libs based upon them.

That’s the sort of thing that leads people to suggest that the NSA has no idea what ‘transparency’ means. Whether that’s a fair criticism or not, the approach taken to disclosing documents as images and PDFs does suggest that the nation’s spy agency has not been following how other federal agencies are approaching releasing government information.

As Matt Stoller highlighted on Twitter, heavily redacted, unsearchable images make it extremely difficult to find or quote information.

Unfortunately, that failing highlights the disconnect between the laudable efforts the Obama administration has made to release open government data from federal agencies and regulators and the sprawling, largely unaccountable national security state aptly described as Top Secret America.”

Along with leak investigations and prosecution of whistleblowers, drones and surveillance programs have been a glaring exception to federal open government efforts, giving ample ammunition to those who criticize or outright mock President Obama’s stated aspiration to be the “most transparent administration in history.” As ProPublica reported this spring, the administration’s open government record has been mixed. Genuine progress on opening up data for services, efforts to leverage new opportunities afforded by technology to enable citizen participation or collaboration, and other goals set out by civil society has been overshadowed with failures on other counts, from the creation of the Affordable Care Act to poor compliance with the Freedom of Information Act and obfuscation of the extend of domestic surveillance.

In that context, here’s some polite suggestions to the folks behind the new ODNI tumblr regarding using the Web to communicate:

  • Post all documents as plaintext, not images and PDFs that defy easy digestion, reporting or replication. While the intelligence budget is classified, surely some of those untold billions could be allotted to persons taking time to release information in both human- and machine-readable formats.
  • Put up a series of Frequently Asked Questions, like the Wall Street Journal’s. Format them in HTML. Specifically address that reporting and provide evidence of what differs. Posting the joint statement on the WSJ stories as text is a start but doesn’t go far enough.
  • Post audio and plaintext transcripts of conference calls and all other press briefings with “senior officials.” Please stop making the latter “on background.” (The transcript of the briefing with NSA director of compliance John DeLong is a promising start, although getting it out of a PDF would be welcome.
  • Take questions on Twitter and at questions@nsa.gov or something similar. If people ask about programs, point them to that FAQ or write a new answer. The intelligence community is starting behind here, in terms of trust, but being responsive to the public would be a step in the right direction.
  • Link out to media reports that verify statements. After DNI Clapper gave his “least untruthful answer” to Senator Ron Wyden in a Congressional hearing, these “on the record” statements are received with a great deal of skepticism by many Americans. Simply saying something is true or untrue is unlikely to be received as gospel by all.
  • Use animated GIFs to communicate with a younger demographic. Actually, scratch that idea.

9 suggested follows for @HillaryClinton on Twitter

Hillary Clinton has joined Twitter. The former First Lady of the United States, U.S. Senator and Secretary of State joined the conversation with aplomb and humor, thanking the authors of a tumblr blog, “Txts from Hillary,” for inspiration and adopting the now iconic image of her aboard a military transport plane as her avatar. Her first — and to this point, only — tweet had been retweeted more than 6,200 times in five hours.

So far, Clinton is only following all-things-Clinton: former President Bill Clinton, their daughter, Chelsea Clinton, and the Clinton Foundation.

The Washington Post suggested 15 accounts for Clinton to follow, ranging from serious (the @VP’s office) to satiric (@AnthonyWeiner & @JustinBeiber.) With the exception of the @StateDept, the list is heavily focused upon U.S. domestic politics and the 2016 presidential election, a prospect that it seems many DC media outlets begin speculating about a few seconds after Mitt Romney walked away from his concession speech in Boston early on the morning of November 7th.

While the list is light-hearted, it’s also unnecessarily constrained in scope and perspective. Clinton spent four years traveling the earth, speaking to world leaders. Why not continue to keep that global reach on a platform that has, well, global reach?

While she could adopt social graphs of Beltway pundits and media, primarily following other DC media and politicians, this new account is an opportunity to do, well, a bit better. While former staffers Jared Cohen, Alec J. Ross, Ronan Farrow, Katie Dowd and Katie Stanton may be of assistance (and useful follows for her) in no particular order, here are 9 other accounts that would vastly improve future #TweetsFromHillary.

1) The White House

People interested in governance and Twitter tend to follow the @WhiteHouse. (Those who wish to be elected to it might benefit as well.) Under Macon Phillips, the White House director of digital, the White House account has taken some risks to become a platform for the President’s policies — and often, amplified back the voices of those Americans who support them. A safe following strategy would be to choose from the accounts the White House follows.

2) Anne Marie Slaughter

A former State Department official turned Princeton official, Slaughter is already well-known to Clinton from her tenure there. Her focus on foreign policy, women’s issues and international affairs is a valuable addition to any feed.

3) Emily Bell

The Director of the Tow Centre for Digital Journalism at Columbia Journalism School is one of the sharpest observers of how technology is changing media and commentators on that shift.

4) Nick Kristof

The New York Times columnist, who calls himself a “print dinosaur, trying to evolve into a new media maven,” has adapted to social media better than any of the other writers on The Grey Lady’s opinion page, from Facebook to Google+ to Twitter. Kristof cuts through the noise, sharing news that matters, and listens to his global networks of connections far better than most.

5) danah boyd

People new to Twitter may find following at least one “social media expert” useful, for tips, nuance and criticism. There’s no one most deserving of that description than digital ethnographer danah boyd, though she’d never claim the title. (Be mindful that she may take a Twitter vacation this summer.)

6) Mark Knoller

If you don’t follow CBS News White House correspondent Mark Knoller, you’re missing a real-time history of the presidency.

7) Bill Gates

One of the world’s smartest men will (help) make you smarter if you follow him.

8) Blake Hounshell

The (former) managing editor at Foreign Policy has one of the best pulses on global events and what they mean on Twitter. He puts world news and events in context, or at least as much as one can in 140 characters. (While you’re at it, Secretary Clinton, set up a list to follow Andy Carvin (@acarvin) too. He tweets a lot but you’ll likely find that many of your former staffers follow him for good reason.)

9) Maria Popova

Everyone has a “desert island follow” or two. For many people, that might be Popova, who has a remarkable talent for finding and sharing interesting literature, art, science and more.

These are, naturally, just a starting point. In 2013, there are literally thousands of government officials, policy wonks, journalists and politicians who Clinton might find following valuable. (Who knows? Maybe she’ll even follow learn from P.J. Crowley.)

There are 66 verified world leaders on Twitter. While most don’t tweet themselves, Estonian president Toomas Hendrik Ilves does personally, sometimes with an edge.

The easiest method may be for her to follow Twitter’s list.

If Clinton wants to make the most of the platform, she’ll do well to personally unfollow some feeds, find new voices, listen to her @replies and act like a human.