It Looks Like Twitter and the FBI Broke These Laws - And the Legal Penalty Might Be Massive


Thanks to a new dump of “Twitter Files,” fresh from the archive in San Francisco, we now know just how deeply embedded the FBI was within the social media giant.

The question is, did those involved break a major federal law by violating the constitutional rights of individuals who were censored on the platform?

In case you missed it, here’s the TL;DR version of the latest revelations to come out of Tweetville, courtesy of journalist Michael Shellenberger:

The FBI had an inordinate number of former employees on the payroll at Twitter, most notably former FBI general counsel James Baker.

In the days, weeks and months leading up to the Hunter Biden laptop story, furthermore, FBI employees or alumni had tried to influence Yoel Roth, then Twitter head of site integrity, that a Russian disinformation campaign was afoot and that it involved the laptop.

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This included overt messages, Shellenberger reported, such as a panicked effort from FBI Special Agent Elvis Chan to reach Roth on the night before the Hunter Biden story hit the newsstand, as well as more subtle moves, such as an Aspen Institute “tabletop exercise” that included Roth just months before the laptop dropped in which a scenario involving a Hunter Biden hack eerily similar to what happened months later (minus the hack, of course) was role-played — shaping how the media would cover it.

Baker was again at the center of this “Twitter Files” dump, with documents suggesting he was among the figures who persuaded Roth to censor the New York Post’s report on the laptop under the aegis of Twitter’s hacked materials policy, despite the fact that Roth had previously stated in an email that “it isn’t clearly violative of our Hacked Materials Policy, nor is it clearly in violation of anything else.”

Not only that, it turns out the FBI was paying Twitter a lot of money for its staff time:

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As podcaster Dave Rubin pointed out, this wasn’t a good look:

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He wasn’t the only one to notice this; the platform’s current owner also found the relationship problematic:

And this is where 18 U.S. Code § 241 and 242 come in — and why this could end up being very illegal on the FBI’s part.

Under Section 241, it’s a crime for “two or more persons [to] conspire to injure, oppress, threaten or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”

Section 242, meanwhile, prohibits “any law, statute, ordinance, regulation, or custom” that “willfully subjects any person … to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

As the U.S. Department of Justice’s website notes, those prosecuted under Section 242 “typically include police officers, sheriff’s deputies, and prison guards. However other government actors, such as judges, district attorneys, and other public officials, can also act under color of law and can be prosecuted under this statute.”

Now, as Philip Hamburger wrote in a Wall Street Journal piece on Dec. 13 — just as the “Twitter Files” began coming to light — these laws were originally enacted in the wake of the Civil War when the Ku Klux Klan and other vigilante organizations did the dirty work of maintaining the antebellum racial status quo by means of intimidation and violence.

Should government officials be prosecuted for asking Twitter to censor?

The DOJ notes that in the modern era, “Section 241 is used in Law Enforcement Misconduct and Hate Crime Prosecutions. It was historically used, before conspiracy-specific trafficking statutes were adopted, in Human Trafficking prosecutions.”

However, the government has recently begun taking a more expansive view of what can be considered a violation of Section 241, at the very least.

In 2021, Douglass Mackey — better known by his social media nom de troll “Ricky Vaughn” — was indicted under the statute for a 2016 prank that urged Hillary Clinton supporters to vote by text message.

Despite the Democratic Party’s best attempts at expanding vote-by-mail and turning Election Day into Election Month-and-a-Half, vote-by-text still isn’t a method of exercising the franchise that’s even remotely under consideration — and the feds didn’t take kindly to the joke, at least now that Joe Biden is president.

“There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” said Seth D. DuCharme, acting U.S. Attorney for the Eastern District of New York, in a statement announcing Mackey’s indictment.

“With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes. They will be investigated, caught and prosecuted to the full extent of the law.”

As Hamburger noted, this new widening of Section 241’s purview could very well include the collusion between the FBI and Twitter to suppress both individuals and organizations.

“Because the First Amendment doesn’t bar private parties from independently suppressing speech, Section 241 would apply to tech censorship only if government officers, acting as part of a conspiracy, have violated the Constitution,” he wrote. “Doctrine on Section 241 requires this underlying constitutional violation to be clear.

“But clarity isn’t elusive. The type of suppression most clearly barred by the First Amendment was the 17th-century English censorship imposed partly through cooperative private entities—universities and the Stationers’ Company, the printers trade guild.”

Furthermore, Hamburger said, “Government remains bound by the First Amendment even when it works through private cutouts. There would be no purpose to a Bill of Rights if government could evade it by using private entities to do its dirty work. As the Supreme Court put it in Frost & Frost Trucking Co. v. Railroad Commission (1926), ‘It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.’

“The First Amendment’s text confirms the unconstitutionality of such workarounds. Any ‘prohibiting’ of the free exercise of religion violates the amendment. In contrast, a mere ‘abridging’ of the freedom of speech is unconstitutional. The government thus violates the latter merely by abridging or reducing it.”

This is thorny legal ground, in other words — but in a world where some doofus faces federal felony charges under Section 241 over trying to persuade Hillaristas to vote via text message, the FBI and its former general counsel persuading a social media network to censor the biggest story of the final stretch of the campaign (not to mention some other individuals and trending topics) certainly sounds like enough of an abridgment of First Amendment free speech protections under color of law to warrant a look.

At the very least, the self-described “chief twit” finds it “interesting”:

The punishments for such crimes are no joke.

According to the DOJ website, a violation of Section 241 “is punishable by up to ten years imprisonment unless the government proves an aggravating factor (such as that the offense involved kidnapping aggravated sexual abuse, or resulted in death) in which case it may be punished by up to life imprisonment and, if death results, may be eligible for the death penalty.”

As for 242, “A violation of the statute is a misdemeanor, unless prosecutors prove one of the statutory aggravating factors such as a bodily injury, use of a dangerous weapon, kidnapping, aggravated sexual abuse, death resulting, or attempt to kill, in which case there are graduated penalties up to and including life in prison or death.”

Granted, the harshest penalties that can be applied under Sections 241 and 242 almost certainly wouldn’t be here; even as serious as Twitter-FBI collusion may be, it’s not up there with lynching and human trafficking.

That said, with the latest batch of “Twitter Files,” things don’t just look rotten. They look potentially illegal as well.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture