Elon Musk’s lawyers have subpoenaed Twitter whistleblower Peiter Zatko in hopes of bolstering Musk’s defense against the lawsuit Twitter filed over their broken merger deal.
The subpoena orders Zatko to produce a list of documents and to appear for an oral deposition on September 9, about five weeks before the Musk/Twitter trial is scheduled to begin at the Delaware Court of Chancery. The subpoena was filed Thursday and made public today.
Zatko, a network security expert also known as “Mudge,” worked at Twitter from November 2020 until being fired in January 2022. His whistleblower complaint, which was made public last week, alleges that Zatko “uncovered extreme, egregious deficiencies by Twitter in every area of his mandate including… user privacy, digital and physical security, and platform integrity/content moderation.” It also claims that Twitter is guilty of “lying about bots to Elon Musk.”
Musk has defended his attempt to break the merger agreement by questioning Twitter’s public disclosure that less than 5 percent of its monetizable daily active users (mDAU) are spam or fake. Musk produced his own spam estimate of 33 percent by using a tool called the Botometer, but that estimate includes all “visible accounts” so it isn’t directly comparable to mDAU.
The Botometer’s creator expressed surprise that Musk used the tool, noting that it lets you “choose any threshold you want and to get any result you want.” Twitter pointed out that the Botometer once gave Musk’s Twitter account a rating of 4 out 5, suggesting the tool saw Musk as more bot-like than human-like. Twitter has also repeatedly said its spam estimates are accurate and that Musk has no right to exit the merger agreement based on the number of spam accounts.
Whistleblower complaint might help Twitter instead
Though Zatko’s complaint accused Twitter of lying to Musk, TechDirt’s Mike Masnick outlined reasons to doubt that conclusion in a lengthy post titled, “Twitter Whistleblowing Report Actually Seems To Confirm Twitter’s Legal Argument, While Pretending To Support Musk’s.”
As Masnick notes, Twitter’s mDAU estimate “has never meant that less than 5 percent of all accounts, or all tweets, or all activity is spam or bots. It just means that less than 5 percent of what is counted in their mDAU number is.” We’ve similarly pointed out in various Ars articles that Musk has argued against Twitter’s 5 percent estimate by talking about the percentage of spam across all Twitter accounts, even though the mDAU figure only includes accounts that are logged in and can see ads each day.
Yet Zatko’s argument that Musk is correct hinges on counting spam bots that aren’t part of the mDAU number. Here’s what Zatko’s complaint said:
However there are many millions of active accounts that are not considered “mDAU,” either because they are spam bots, or because Twitter does not believe it can monetize them. These millions of non-mDAU accounts are part of the median user’s experience on the platform. And for this vast set of non-mDAU active accounts, Musk is correct: Twitter executives have little or no personal incentive to accurately “detect” or measure the prevalence of spam bots.
Masnick pronounced himself “really confused by this section, and the claims that ‘Musk is correct.’ Because in court they’re not arguing about how much spam is on the overall platform. They’re arguing about how much is in the mDAU.” Yet the quoted paragraph from Zatko’s complaint “confirms exactly what Twitter has been saying in SEC filings and in court. What it reports to the SEC is an estimate of how many spam accounts slip through other processes, and are inadvertently counted in the mDAU,” Masnick wrote.
“The fact that Mudge is saying that there are spam accounts outside the mDAU… is the very point that Twitter has been making and that Musk keeps misrepresenting,” Masnick continued. “mDAU does not include all accounts on the platform. And the only way in which the spam counting could even be remotely relevant to the case (and, again, it’s not) is if Twitter made a material misstatement to the SEC.”
Zatko’s wide-ranging complaint could be problematic for Twitter in other ways. The Federal Trade Commission is reportedly reviewing the complaint, and the US Senate Judiciary Committee set up a hearing with Zatko for September 13. Zatko has also reportedly discussed the complaint with staff at several other Congressional committees.
Musk seeks mDAU documents and much more
Nonetheless, Musk is seeking a wide range of documents and communications related to mDAU from Zatko. The mDAU requests include but aren’t limited to documents and messages about “Twitter’s use of mDAU as a ‘Key Metric,’ as noted in Twitter’s SEC filings”; documents “supporting, refuting, or otherwise relating to Twitter’s representation” to the SEC that less than 5 percent of mDAU are spam; and documents about how the mDAU metric and spam numbers are calculated.
Musk wants documents and messages related to “Twitter’s use of any other user metric other than mDAU, including but not limited to, daily active users, monthly active users, daily user engagement, monthly user engagement, or advertisement engagements.” Another request targets documents “describing any process or workflow” that Twitter uses to detect and label accounts as spam or false.
Musk also wants “Documents and Communications regarding foreign intelligence service agents employed at Twitter.” That’s apparently in response to Zatko’s allegation that the “Indian government forced Twitter to hire specific individual(s) who were government agents.” Also, a federal jury recently convicted a former Twitter employee of acting as a foreign agent for Saudi Arabia.
Musk further seeks documents “regarding security vulnerabilities at Twitter,” documents related to Zatko’s firing, documents “regarding reports of the prevalence of bot or spam accounts on Twitter to [CEO] Parag Agrawal and/or other members of Twitter’s executive team,” and much more.