Musk’s DSA Debacle: From ‘Exactly Aligned’ To Accused Of Violations

Elon Musk declaring the EU DSA regulation as “exactly aligned with my thinking” and agreeing with “everything” it mandates is looking pretty hilarious at this point.

Elon Musk loves endorsing things he clearly doesn’t understand and then lashes out when they backfire. Last week, we had the story of how he was demanding criminal prosecution of the Global Alliance for Responsible Media (GARM) just one week after ExTwitter announced it had “excitedly” rejoined GARM. But now he’s really outdone himself.

Two years ago, soon after Elon announced his bid to takeover Twitter because (he claimed) he was a “free speech absolutist,” he met with the EU’s Internal Market Commissioner, Thierry Breton, and gave a full-throated endorsement of the EU’s Digital Services Act (DSA). At the time, we pointed out how ridiculous this was, as the DSA, at its heart, is an attack on free speech and the rights of companies to moderate as they wish.

At the time, we pointed out how it showed just how incredibly naïve and easily played Elon was. He was endorsing a bill that clearly went against everything he had been saying about “free speech” on social media. Indeed, the previous management of Twitter — the one so many people mocked as being against free speech — had actually done important work pushing back on the worst aspects of the DSA when it was being negotiated. And then Musk came in and endorsed the damn thing.

So, of course, the EU has been on the attack ever since he’s taken over the company. Almost immediately Breton publicly started lashing out at Musk over his moderation decisions, and insisting that they violated the DSA. As we highlighted at the time, this seemed ridiculously censorial and extremely problematic regarding free expression.

But, of course, the whole thing was pretty much a foregone conclusion. And late last week, the EU formally charged ExTwitter with violating the DSA, the very law that Elon originally said was great and he agreed with its approach.

The commission has three findings, and each of them seems problematic in the typical simplistic EU paternalistic manner, written by people who have never had any experience having to manage social media.

To be clear, in all three cases, I do wish that ExTwitter were doing what the EU is demanding, because I think it would be better for users and the public. But, I don’t see how it’s any business of EU bureaucrats to demand that ExTwitter do things the way they want.

First, they don’t like how Elon changed the setup of the “blue check” “verified account”.

• First, X designs and operates its interface for the “verified accounts” with the “Blue checkmark” in a way that does not correspond to industry practice and deceives users. Since anyone can subscribe to obtain such a “verified” status, it negatively affects users’ ability to make free and informed decisions about the authenticity of the accounts and the content they interact with. There is evidence of motivated malicious actors abusing the “verified account” to deceive users.

And, I mean, I’ve written a ton of words about why Elon doesn’t understand verification, and why his various attempts to change the verification system have been absurd and counterproductive. But that doesn’t mean it “deceives users.” Nor does it mean that the government needs to step in. Let Elon fall flat on his face over and over again. This entire approach is based on Breton and EU technocrats assuming that the public is too stupid to realize how broken ExTwitter has become.

As stupid as I think Musk’s approach to verification is, the fact that it doesn’t “correspond to industry practice” shouldn’t matter. That’s how experimentation happens. Sometimes that experimentation is stupid (as we see with Musk’s constantly changing and confusing verification system), but sometimes it allows for something useful and new.

Here the complaint from the EU seems ridiculously elitist: how dare it be that “everyone” can get verified?

Are there better ways to handle verification? Absolutely. Do I trust EU technocrats to tell platforms the one true way to do so? Absolutely not.

Second, the EU is mad about ExTwitter’s apparent lack of advertising transparency:

• Second, X does not comply with the required transparency on advertising, as it does not provide a searchable and reliable advertisement repository, but instead put in place design features and access barriers that make the repository unfit for its transparency purpose towards users. In particular, the design does not allow for the required supervision and research into emerging risks brought about by the distribution of advertising online.

I wish there were more details on this because it’s not entirely clear what the issue is here. Transparency is a good thing, but as we’ve said over and over again, mandated transparency leads to very real problems.

There are serious tradeoffs with transparency, and having governments require it can lead to problematic outcomes regarding privacy and competition. It’s quite likely that ExTwitter’s lack of a searchable repository has more to do with (1) Elon having a barebones engineering staff that only focuses on the random things he’s interested in and that doesn’t include regulatory compliance, (2) Elon really, really hates it when the media is able to point out that ads are showing up next to awful content, and (3) a repository might give more of a view into how the quality of ads on the site has gone from top end luxury brands to vapes and crypto scams.

So, yes, in general, more transparency on ads is a good thing, but I don’t think it’s the kind of thing the government should be mandating, beyond the basic requirements that ads need to be disclosed.

Finally, the last item is similar to the second one in some ways, regarding researcher access to data:

• Third, X fails to provide access to its public data to researchers in line with the conditions set out in the DSA. In particular, X prohibits eligible researchers from independently accessing its public data, such as by scraping, as stated in its terms of service. In addition, X’s process to grant eligible researchers access to its application programming interface (API) appears to dissuade researchers from carrying out their research projects or leave them with no other choice than to pay disproportionally high fees.

And, again, in general, I do wish that ExTwitter was better at giving researchers access to data. I wish that they made it possible for researchers to have API access for free, and not tryin to charge them $42,000 per month.

But, again, there’s a lot of nuance here that the EU doesn’t understand or care about. Remember that Cambridge Analytica began as an “academic research project” using the Facebook API. Then it turned into one of the biggest (though, quite over-hyped) privacy scandals related to social media in the last decade.

I have no doubt that if ExTwitter opened up its API access to researchers and another Cambridge Analytica situation happened, the very same EU Commissioners issuing these charges would immediately condemn the company for the sin of making that data available.

Meanwhile, Elon is claiming in response to all of this that the Commission offered him an “illegal secret deal” that they wouldn’t face these charges if they “quietly censored speech without telling anyone, they would not fine” the company. Musk also claimed that other companies accepted that deal, while ExTwitter did not.

So, this is yet another situation in which both sides are being misleading and confusing. Again, the structure of the DSA is such that its very nature is censorial. This is what we’ve been pointing out for years, and why we were horrified that Elon so loudly endorsed the DSA two years ago.

But, it does not at all match with how things actually work with the EU Commission to suggest that the EU would offer “secret deals” to companies to avoid fines. Thierry Breton’s explanation that there was no “secret deal” with anyone, and that it was ExTwitter’s own staff that asked what terms might settle the complaint rings very true.

In the end, both sides are guilty of overblown dramatics. Elon Musk continues to flounder spectacularly at managing a social media platform, making a series of blunders that even his fiercest advocates can’t overlook. However, the EU’s role is equally questionable. Their enforcement of the DSA seems overly paternalistic and censorial, enforcing best practices that may not even be best and reeking of condescension.

The allegations of an “illegal secret deal” are just another smoke screen in this complex spectacle. It’s far more likely that the EU Commission pointed to the DSA and offered standard settlement terms that ExTwitter rebuffed, turning it into a grandiose narrative.

This debacle offers no real heroes — just inflated egos and problematic regulations. What we’re left with is an unending mess where no one truly wins. Musk’s mistaken endorsement of the DSA was a red flag from the beginning, showing that hasty alliances in the tech-policy arena often lead to chaos rather than clarity.

There are a ton of nuances and tradeoffs in the tech policy space, and neither Musk nor Breton seem to care about those details. It’s all about the grandstanding and the spectacle.

So, here we stand: a free speech absolutist who endorsed censorship regulations and a regulatory body enforcing broad and suspect mandates. It’s a circus of hypocrisy and heavy-handedness, proving that in the clash between tech giants and bureaucratic juggernauts, the rest of us become unwilling spectators.