How Peter Thiel almost ruined TechDirt and the peril of the selective information attack

Nick Denton was a sleazebag. I knew that within one minute of meeting him, as he described the new web site he was planning, called "Valleywag." He was proud he had learned the name of Larry Page's girlfriend and he could break that story, as if who Larry was dating was worthy news of some kind.

Many years later, Denton met his downfall and few shed tears for him, for he published many far less newsworthy stories in his Gawker network of sites. Some of the sites (like io9) were worthwhile, others were not. His downfall may have come when he outed Peter Thiel -- or did something else -- and pissed off a billionaire. While Peter's sexual orientation was not, as far as I knew, a secret or something that anybody cared about in the San Francisco circles that we ran in, Thiel's battle with Denton led to some consequences with ramifications for core principles of free speech.

Peter could not sue directly over this, but he didn't need to. Instead, he offered to fund anybody who had a claim against Denton. It wasn't hard to find them, and the big fish was wrestler Hulk Hogan. Gawker had disclosed a sex tape involving Hogan. The resulting lawsuit netted enough money to bankrupt Gawker.

So a sleazy gossip publisher was taken down for invading privacy he should not have invaded. Do we cheer along with Peter?

Thiel funded other attacks on Gawker, some of them more dubious. He allegedly funded the ridiculous case of Shiva Ayyadurai, who makes the claim that he invented e-Mail in 1981. Lots of people point out that this claim is ludicrous, since e-Mail was in very wide use long before that. Gawker pointed out that the claim was ridiculous. Ayyadurai sued, and, it is widely believed, got the backing of Thiel. As many know in the legal business, if you are sued by a well funded opponent, it's going to be very expensive, regardless of whether you are right or wrong. If you get a settlement offer that's going to cost you less than winning the case in court, it's very tempting from a business standpoint. People settle these sorts of things all the time, purely for financial reasons. Gawker settled, even though it was right, and paid a large sum to Ayyadurai. Thiel had cost Gawker a chunk of change, another victory in his battle.

Problem was that now that Ayyadurai was armed with that settlement money, and saw that the strategy worked, and he now he had the tools to file more frivolous lawsuits against people who laughed at his claim of inventing e-Mail. One such target was TechDirt, a tech/civil rights blog published by Mike Masnik. I had not met Mike until after all of this, but his blog was very much liked at the EFF and in many other places, and a valuable service and resource for the community.

Masnick had to fight a legal battle. He is a man of principle, and would not settle. He fought in court. Costs rose close almost to the point of bankrupting and shutting down his site. It was touch and go, but he mostly prevailed. Aside from costing a fortune he didn't have, it put a considerable drain on the good work of making the site.

Recently, I made the case to Peter that, even if (as he does) one felt his tactics against Gawker and Denton were fully legitimate, the damage done to innocent bystanders like TechDirt was very similar to "collateral damage" in a military engagement. Militaries use blunt weapons against their enemies. They know that in doing so, they may have a few ricochets that hurt civilians. Moral militaries seek to repair the collateral damage and view it as part of the cost of what's needed to fight the enemy.

Peter didn't buy that, unfortunately, and won't help. Rather, he told me he was angry that all those who criticized him for what he did in the battle left out the fact that Denton was a sleazebag who deserved to go down. I didn't write publicly on it at all but agreed that when I did, I would be happy to say that. And so I have.

Because it doesn't matter what you think of Peter or whether Denton deserved what he got. It doesn't matter on the question of whether collateral damage should be repaired, but it also don't matter on the question of whether the way Gawker was taken down is moral, other than from the most pure "ends justifies the means" standpoint.

Cardinal Richelieu is said to have declared, "Give me six lines from the most innocent of men, and I will find something within him with which to hang him." You could certainly find something to hang Denton with in his works, but the problem is that Peter Thiel's "I'm a billionaire and I'll find some way to get you" approach will work on anybody, including the most innocent. Including the best of us -- for nobody is completely innocent.

There is no person who would not fall if a billionaire decides to fund anybody who will sue them for real and imagined wrongs. Perhaps a totally pure person who is also very rich can survive. But sometimes not even them. So all that really decides whether you are going down or not is whether you piss off somebody rich and powerful. Even the strongest media organizations in the world might get bankrupted by this technique.

When this happens, you give up the rule of law, and fall to the rule of men. Or not even the rule of men, but the rule of those who through wealth, power or ill actions can get access to secrets. It's a power nobody should have. In theory there is due process, but only in theory.

That anybody can be subject to this is clear when we see that Jeff Bezos, the world's richest man, pissed off Mohammed bin Salman, also one of the richest but as an absolute ruler, even more powerful. MBS wanted to punish Bezos for owning the Washington Post, which had been highly critical, since, among other things, most newspapers are not fond of having their columnists brutally murdered.

MBS took advantage of his intelligence agencies to find some chinks in Bezos' armour, and found out about his affair. He had to hide how the information was found, so created a cover story, that a relative of Bezos' mistress had fed the evidence to the National Enquirer. That story became a juicy scandal, and broke up his marriage and resulted in the largest settlement in a divorce by a huge margin. Bezos did the deeds that ended his marriage, but they were no different from those of millions of others. He had the public campaign against him not for his filandering, but because he pissed off the wrong powerful man.

This story is repeating itself with regularity now. We're suckers for it. Those who have the power to get information rule the world today. We are all guilty of sins. A lot of us are guilty of some bad ones. Nobody plays at a very high level without also doing some high level badness and making high level mistakes, we're not perfect enough beings to avoid that.

Anybody -- not just the head of a country -- who can get into your secrets and find something juicy can reveal it and make the public or the system attack you. The public keeps not caring who revealed the information, or why it was revealed. They attack even though they know that their enemies are trying to use them as a tool. They attack even when they know they would never have learned about the problem if somebody out to destroy them hadn't carefully dug it out and revealed it.

Very famously, Russian attackers dug into the emails of the Democratic National Committee. They "leaked" it through wikileaks. People loved Assange and wikileaks when it helped the whistleblower. It became a different story when it became the knowing accomplice of those who would use it to aim the public's ire like a weapon. Make no mistake, today we punish not the people who have done wrongs, but the people whose wrongs get pointed out because somebody else (often an enemy of both the exposed party and the public) decided they would use their power to make it happen.

So the fact that Gawker deserved to go down doesn't matter. We need to find a way so that our courts and our court of public opinion can't be used as a tool by those able to do selective disclosure of hidden problems. Because all have a lot of hidden problems. This power creates more than a weapon, it creates a chilling effect. You have to imagine that newspapers have a little more fear today of publishing something that might piss of Peter Thiel. And definitely of getting the attention of Mohammed bin Salman or Vladimir Putin. Or any billionaire or leader of a good data hacking team.

I wish I had some cause for optimism. We seem incapable of doing the right thing, of pretending we didn't see what the manipulator cherry picked for us to see. We think we are smarter, that we can't be manipulated. The revealed sin might have been revealed to manipulate us, but it also can't be ignored. Sure, if they bothered to only leak lesser sins, we could do better at it, but somehow they don't. Can we ever say, "We will ignore this terrible thing we learned about you now that we know somebody revealed it only to manipulate us?" Is there any vaccine that can immunize us against this? Some imagine that if only the world had full transparency and all the secrets were already out, it would save us, but I don't think the world can ever be that transparent. And I don't think our secrets can ever be so secure.

It is, of course, illegal to threaten to reveal a damaging secret to get the target to do something -- that's blackmail. It would be very hard to punish people for actually doing the revealing. The act we want to stop is deliberately digging and then revealing for some selfish reason, rather than for the public good. But that's very hard to nail down and would not work against foreign attackers like MBS or Russia. This may just be one of those bugs for which there is no fix.


Thank you for speaking out on this - it’s not the sort of post that makes friends but it’s good to hear from you. I suppose one could point to inequality as a larger cause of this - that billionaires have the resources they do - but that’s hardly a quick solution.

But it's not the only way to this sort of power, which leverages the crowd or the courts to do something they are not meant to do. As I wrote, the theme in all these issues was replacing the rule of law with the rule of men.

Beyond hoping that better education might help, I feel that restoring trust in public institutions – including the courts and political process - is essential. Easier said than done, since many would have good cause to say that the rule of law has never been deserving of trust. And I realise this is a centrist canard, but investing in places where different strata of society can come together might help people stop jumping towards conclusions and falling for selective information attacks.

Are there instances where the public has said, "We came upon this damning bit of information through nefarious means designed to manipulate us. Thus, we will pretend we didn't see it?" When the offence was bad enough?

The courts figured this out long ago. Evidence has to be gathered according to rules. It can't be presented if it isn't. And if it is presented by accident, the jury is told to pretend it didn't hear it. Which they have trouble doing, of course, but it's easier to get a group of 12 to do that than a mob.

But are we talking about the “mob” or the formal judicial system here? In the case of Gawker and Thiel, it wasn’t an angry mob that led to the downfall of Gawker. Which is not to say that there isn’t an issue with mob justice, but I do think they are different problems with different solutions, with formal courts (in the US) being more vulnerable to billionaires with a grudge; and public mobs being more vulnerable to heightened emotions and demagogues.

But a common thread about the rule of men. Peter's not a mob. As a billionaire he has the power of one. His improper act was to use flaws in the legal system at scale with his money, funding any lawsuit he could find against his target.

Is it that hard to see why that's a bad thing? Is there anybody, except another billionaire, who could withstand such an onslaught? Even if they are entirely innocent? I don't think so. And we don't want that sort of thing to happen.

Gawker was scuzzy, but it was still a publication. Peter's technique would let any billionaire take down all but the largest and richest of publications. Regardless of whether the publication is scuzzy or pure.

It's not just that anyone *can* be taken down, there's also the chilling effect on people who are disproportionately likely to be targeted. Once you legitimise mob rule you quickly find that anyone the mob doesn't like has lost an awful lot of freedom. It's obvious in politics, where outside the hard right anyone standing for election just has to accept that they will face a torrent of hate, but anyone the mob especially dislikes will get special treatment - women will get rape and death threats far more than men will, non-whites will get racist abuse, and of course people too poor to buy isolation and protection will face all this up close and in person.

Then we wonder... why is it overhwelmingly rich white men from privileged backgrounds who are willing to engage in politics?

Giving people free advertising on antisocial media will help, but until we-the-mob* stop lynching people we have a problem.

* note that "we" here is less than 10% of the population. The other 90% need to speak up, and the power centres need to stop creating and amplifying those problems. If tech companies wanted to help they could aggressively de-prioritise harmful content rather than amplifying it.

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