• by Wendy Davis  @wendyndavis, November 24, 2023

A lawsuit by X Corp., formerly Twitter, against a nonprofit that issued reports about hate speech on the platform could hinder other organizations' that aim to expose tech companies' practices, the American Civil Liberties Union and other groups told a federal court Friday.

“This dispute has implications beyond the parties to this case,” the ACLU, Electronic Frontier Foundation and Knight First Amendment Center at Columbia University wrote in proposed friend-of-the-court brief filed Friday with U.S. District Court Judge Charles Breyer in the Northern District of California.

They add that a victory for X Corp. would “create significant dangers for others seeking to use basic digital tools -- like scraping -- to provide the public with insight into the powerful platforms that we all now rely upon for news and information.”

The digital rights groups' argument comes in a friend-of-the-court brief urging Breyer to dismiss X Corp's claims that the nonprofit Center for Countering Digital Hate wrongly used automated tools to gather information about publicly available posts on Twitter.com.

X Corp. sued one month after the Center for Countering Digital Hate reported that Twitter failed to remove objectionable speech -- including racist, homophobic and anti-Semitic comments -- posted by paid Twitter Blue subscribers. That report cited several examples, such as the posts “Diversity is a codeword for White Genocide,” and “Trannies are pedophiles.”

The tech company's lawsuit included claims that the watchdog's alleged scraping -- meaning its alleged use of automated tools -- violated Twitter's terms of service as well as a federal anti-hacking law.

X Corp. -- which has seen ad revenue plummet since its acquisition by Elon Musk -- claimed that the nonprofit aimed to gather material for a “scare campaign” aimed at driving away advertisers and suppressing speech on social media.

The company didn't deny that the posts flagged by the Center for Countering Digital Speech were on the platform, but accused the watchdog of cherry-picking its examples.

Earlier this month, the Center for Countering Digital Hate Speech urged Breyer to dismiss the case. The watchdog argued that most claims in the complaint involve “quintessential newsgathering activity,” and should therefore be struck down under California's anti-SLAPP (strategic litigation against public participation) law. That statute entitles defendants to fast dismissals of claims based on statements about matters of public interest, and also allows defendants to recover attorneys' fees.

The ACLU and other digital rights groups argue that allowing X Corp. to enforce anti-scraping provisions in its terms of service would run counter to public policy.

“Courts cannot, and should not, allow private companies like X Corp. to wield breach of contract claims as a weapon to punish criticism,” the groups write in their proposed friend-of-the-court brief.

“When scraping public information is done to advance public interest research and journalism, it is a key component of a unified process of engaging in lawful, constitutionally protected speech,” the groups write, adding that nonprofits, academics and journalists rely on scraping to “shed crucial light on a panoply of concerns that powerful social media platforms have failed to independently monitor and correct.”