Lononaut Receives an FEC Decision

Lononaut recently received a well-crafted, well-researched dismissal of an FEC complaint against Twitter, Inc. 

Details can be found here: https://www.fec.gov/data/legal/matter-under-review/7829/ 

Interestingly, one commissioner, Sean J. Cooksey, dissented from the adoption of the commission's analysis for reasons not given. (He voted with everyone else to dismiss the complaint.) Truthfully, the FEC's ability to regulate online political speech is limited, and though the FEC dismissed the complaint, its lawyers did an excellent job within the limits of their jurisdiction. Yet, it is clear Section 230 needs substantial revision, or the FEC's powers need to be expanded. 

Not included in the record are my follow-up emails to the FEC's attorneys, which I will include below. 

I "would like to share some suggestions. You will notice I alleged--though perhaps not as clearly as I should have--that my account was targeted as a way of reducing political discussion to "approved" sources, i.e., social media participants able to receive blue checks or affiliated with one of the two major political parties' arms. I understand that the FEC believes my allegation to be speculative. Yet, given PAC secrecy rules and individual privacy issues, it is unclear how I could have proven a coordinated campaign against my account other than res ipsa loquitur.

Algorithms are automatic. If they decided my use of a term was hate speech, my tweet would have been flagged immediately. It was not or at least the notification was delayed because it had to be approved by a human being. Because the initial suspension was NOT immediate, the only other way my account could have been subjected to review is if someone else "flagged" or reported my comment. Once again, algos related to hate speech are automatic--perhaps at Twitter, they are subject to human review at some point, but your decision did not cite any such process. In fact, your decision--and others like it--do not appear to force social media companies into revealing the algo processes they claim are objective and neutral, which allows them to claim whatever they like while receiving Sec 230 protection.

My "appeal" to you herein is to subpoena social media sites' processes for activating algos and subsequent banning or suspensions. Are human beings involved? If so, at what point? What is the criteria those human beings have to consider? Are they subject to time constraints biasing them in favor of accepting whatever the algo initially indicates? **Was my account flagged purely by an algo, or was a human being involved as well?** I'm sure social media companies will allege trade secrets, and I'm sure you're all familiar with the concept of a protective order. As of now, I still believe my account was flagged by a user or users, which then led to the suspension of my account. Yet, I have no evidence to support my belief other than the fact that the timing of the suspension plus the delay between my tweet being flagged and the suspension do not indicate a pure algo was involved. I hope I have adequately explained my issue, and I hope you will share these suggestions with staff and the commissioners. Once again, I thank you for writing an excellent, logical opinion, and hope you have fixed the erroneous link I pointed out earlier... 

On information and belief, your opinion failed to consider the fact that the algo Twitter claimed as commercially necessary (for ads and safety) did NOT flag the tweet immediately, indicating human involvement and therefore human discretion. Whether this human involvement was a concerted effort on behalf of a particular political party is the question, and there is no way an individual claimant can determine the answer without infringing on or co-opting the FEC's discovery powers." 

Christine Gallagher, my FEC attorney contact, correctly informed me the next step would be an appeal to United States Court of Appeals for the District of Columbia Circuit. Her full response is below, and the federal government is lucky to have someone as diligent as her: 

Dear Mr. Rafat,

This is in response to your emails received on March 5, 2022.  As set forth in the closing letter: “The Federal Election Campaign Act of 1971, as amended, allows a complainant to seek judicial review of the Commission’s dismissal of this action. See 52 U.S.C. § 30109(a)(8).”  The Commission’s Enforcement Guide explains a complainant’s recourse.  The pin cite it here: https://www.fec.gov/legal-resources/enforcement/complaints-process/how-to-file-complaint-with-fec/. If you scroll down the webpage, the link on the left-side will bring you to “Complainant’s Recourse” and information about judicial review.  That webpage also contains the process for filing a complaint with the Commission.  In addition, I am attaching another pin cite to the Commission’s 2012 Guidebook for Complainants and Respondents on the FEC Enforcement Process: https://www.fec.gov/resources/cms-content/documents/respondent_guide.pdf. Pages 21-22 address complainant’s recourse, and pages 6-7 address how to file a complaint.

Also mentioned in the closing letter is the Commission’s policy regarding documents that are placed on the public record once an enforcement matter is closed.  See Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50,702 (Aug. 2, 2016). The pin cite to that policy is here: https://www.fec.gov/resources/cms-content/documents/notice2016-06.pdf.  The emails that you sent post-closing of this matter will not be placed on the public record based on the Commission’s Disclosure Policy.

Over the past few weeks, I've noticed several FEC complaints against Twitter, Inc.  Americans care about their ability to speak, and social media giants have failed to self-police speech in consistent and credible ways. Given the amount of attorneys' fees Twitter must be spending just on FEC complaints, it's odd we haven't seen more lobbying efforts seeking to revise Section 230 so as to strike a better balance between human (non-algorithm) involvement and liability protection. 

© Matthew Mehdi Rafat (2022)