ExTwitter’s New Terms Focused On Screwing Users, Benefiting Elon, And If You Don’t Like It, Elon’s Favorite Judge Gets To Decide

Often when internet companies change their terms of service, there will be a short freakout from people overreacting and not really understanding the language of what's in there. We see these stories every so often, frequently around things like licensing terms (which sites are effectively required to have to get permission to host user-generated content).

But, Elon Musk is changing ExTwitter's terms of service yet again. The new ones are set to go into effect on November 15th, and they're raising some eyebrows. I see three major areas of concern.

Venue: Elon wants biased Tesla-owning judge to hear all disputes, despite being nowhere near HQ

The new terms say the following:

All disputes related to these Terms or the Services, including without limitation disputes related to or arising from other users' and third parties' use of the Services and any Content made available by other users and third parties on the Services, will be brought exclusively in the U.S. District Court for the Northern District of Texas or state courts located in Tarrant County, Texas, United States, and you consent to personal jurisdiction in those forums and waive any objection as to inconvenient forum.

Now, as you may know, ExTwitter just recently moved its headquarters from California to Texas. So, you might say, no big deal, they're just moving disputes to the local court." But that's not what's happening. Because ExTwitter's new headquarters is nowhere near the Northern District of Texas. It's in the Western District of Texas. Nor is it near the state courts in Tarrant County.

Indeed, the courthouse that ExTwitter is directing all disputes through is over 200 miles away from its new headquarters, a three hour drive (if there's no traffic).

It's not at all about convenience. It's about Elon Musk's new favorite judge, Reed O'Connor, who has been bending over backwards to help Elon out in Elon's censorial SLAPP suit against Media Matters.

Remember, Media Matters had tried to get the judge thrown off the case, noting that he owned a ton of Tesla stock and that Elon treated Tesla, ExTwitter, and all his other companies as basically the same thing. But the judge insisted that was crazy, and that his ownership of a vast quantity of Tesla stock would not bias him in a case involving Elon.

Notably, just last week, O'Connor's latest filings revealed that he still owned a ton of Tesla stock. And, as Musk has discovered, if you file in specific districts in Northern Texas, you are effectively guaranteed to get Judge O'Connor on the case.

Steve Vladeck, a legal ethics expert, told NPR how fucked up all of this is:

For X to say we want all of our litigation to go into a forum that may have no connection to where we're located, to where plaintiffs are located, runs headlong into the federal system's preference for convenience," Vladeck said. Are we going to allow companies to override that principle of convenience in the name of trying to stack the deck in their favor whenever they have the power to get you to agree to terms of service?"

This is cynical and destructive. It's not unheard of for companies to play games with venue to try to seek out a favorable court. I mean, it basically created an entire industry in East Texas. But I can't recall ever seeing a company put into its terms of service an agreement that all cases basically have to go to a biased judge who owns stock in one of the owner's companies.

ExTwitter added a liquidated damages clause if you view too much ExTwitter

Elon has gone to war with researchers who have been trying to study how much damage he's done in enabling waves of hate speech and harassment on the site. But, have no fear, the new terms say that anyone trying to actually analyze that may have to pay him. There's a new liquidated damages clause that seems to be targeting researchers and journalists who try to scan portions of the site:

Protecting our users' data and our system resources is important to us. You further agree that, to the extent permitted by applicable law, if you violate the Terms, or you induce or facilitate others to do so, in addition to all other legal remedies available to us, you will be jointly and severally liable to us for liquidated damages as follows for requesting, viewing, or accessing more than 1,000,000 posts (including reply posts, video posts, image posts, and any other posts) in any 24-hour period - 15,000 EUR per 1,000,000 posts. You agree that these amounts are (i) a reasonable estimate of our damages; (ii) not a penalty; and (iii) not otherwise limiting of our ability to recover from you or others under any legal or equitable theory or claim, including but not limited to statutory damages and/or equitable relief. You further agree that repeated violations of these Terms will irreparably harm and entitle us to injunctive and/or equitable relief, in addition to monetary damages.

I'm not entirely sure this is actually enforceable because it's ridiculous. But, of course, in this age of companies trying to squeeze money out of AI companies, it might also be seen as a way to set up a potential legal claim to file against AI companies that won't pay up for the right to scan.

I can just imagine that Elon is itching to sue OpenAI (with which he's already in court on other issues) over this one.

Still, this is a bold move, considering that under the DSA, platforms (including ExTwitter) are required to give researchers access to data under Section 40.12. Chances are Elon doesn't know or doesn't care about that, but given that the EU is already investigating the company, it's a choice to poke at the EU even more.

But also, Elon wants to make sure he can sell your tweets to AI companies

The final change that is raising some eyebrows is that if you continue using the site, you're giving Elon the right to profit from your tweets as he sells them to other AI companies. This is highlighted in two places. First in the section on your rights":

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, upload, download, and distribute such Content in any and all media or distribution methods now known or later developed, for any purpose. For clarity, these rights include, for example, curating, transforming, and translating. This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for us to (i) analyze text and other information you provide and to otherwise provide, promote, and improve the Services, including, for example, for use with and training of our machine learning and artificial intelligence models, whether generative or another type; and (ii) to make Content submitted to or through the Services available to other companies, organizations or individuals, including, for example, for improving the Services and the syndication, broadcast, distribution, repost, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by us, or other companies, organizations or individuals, is made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services as the use of the Services by you is hereby agreed as being sufficient compensation for the Content and grant of rights herein.

And then again in the license section, just to double down:

You agree that this license includes the right for us to (i) provide, promote, and improve the Services, including, for example, for use with and training of our machine learning and artificial intelligence models, whether generative or another type; and (ii) to make Content submitted to or through the Services available to other companies, organizations or individuals, including, for example, for improving the Services and the syndication, broadcast, distribution, repost, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by us, or other companies, organizations or individuals, is made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services as the use of the Services by you is hereby agreed as being sufficient compensation for the Content and grant of rights herein.

So, Elon is making it quite clear that if you're posting to ExTwitter, you're willing to feed everything you write into his AI, while also allowing him to sell your content to other AI companies without getting any compensation.

But if you were to scrape that same content, you might have to pay liquidated damages. If any of that leads to a legal dispute, it will go in front of a heavily conflicted, biased judge who has made it clear that he does not remotely care about the appearance of bias in cases involving Elon.

Seems less than ideal.

Remember when Elon insisted that a key reason he wanted to buy ExTwitter was to create the global public square" and promised to be more open about the site? These new terms do the opposite of that. They are effectively locking up the site in a way that allows Elon to profit more from selling everyone's content, while blocking anyone else from reviewing what's on the site... and putting any dispute in front of a judge who has already shown a willingness to side with Elon in ridiculous cases.