Call Regarding Update on NIH Facebook/Instagram Lawsuit

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1. 2021-11-10 15:30 Sarah J. Imhoff
   Hi everyone, David Lankford and I would like to schedule a call with you to give an update on our discussions with the DOJ this week, some additional questions we have and your initial thoughts on DOJ's current proposed next steps. We haven't received any firm advice on what NIH should do moving forward yet, but wanted to get your opinion on DOJ's current next steps to see whether we should have further discussions with them about their proposed strategy. Can you please let me know when your team is available for a discussion this Friday, 11/12? We are open except from 34pm. Thank you, Sarah J. Imhoff, JD, MHSA Senior Attorney Office of the General Counsel Public Health Division, NIH Branch (direct) @nih.gov This e-mail message is intended for the exclusive use of the recipient(s) named above. It may contain information that is protected, privileged, or confidential, and it should not be disseminated, distributed, or copied to persons not authorized to receive such information. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think you have received this e-mail message in error, please notify the sender immediately. Stipulation of Facts for People for the Ethical Treatment of Animals et al. v. Collins et al., U.S. District Court for District of Columbia, Case No. 1:21-cv-2380-BAH [Examples of Posts PETA 51. Asa result of the keyword filtering used by the NIH on its Facebook page, certain comments made by multiple PETA employees in response to Facebook Live videos and Facebook posts did not appear on the NIH Facebook page. 52. OnSeptember 24, 2020, PETA employee was prevented from posting three comments on a Facebook Live video on the NIH Facebook page about COVID-19 vaccine research. One read, "Francis Collins, we appreciate all your hard work to search for a COVID vaccine, but why is NIH still wasting money on cruel and ineffective monkey fright experiments?" was unable to post these comments at all, because they violated the NIH's content moderation settings for Live videos. [El <aw that the comment had not been posted because it was bordered by a red box, and text below 'the comment read "Unable to post comment. Try again." A copy of attempted comments is attached hereto as Exhibit [X]. 53. OnOctober 8, 2020 again tried to comment on an NIH Facebook Live video about gene editing, but several of her comments were blocked due to the NIH's keyword filters for Live Videos, including: "Congratulations, Dr. Doudna! Francis Collins, please end NIH's fright experiments on primates;" and "CRISPR can be used for advanced, non-animal experiments. In light of the many nonanimal technologies that are developing, how can NIH continue to conduct experiments on macaques and other primates?" J saw that the comments had not been posted because they were bordered by a red box, and text below the comments read "Unable to post comment. Try again." A copy of FY attempted comments is attached hereto as Exhibit [X]. 54. OnMay 27, 2021] attempted to post several comments to an NIH Live video featuring Dr. Kizzmekia Corbett, including: "Thank you, Dr. Corbett and Dr. Collins, for your hard work on the COVID vaccines! Why is the NIH still wasting funds on Elisabeth Murray's monkey fright experiments instead of investing more in important clinical research about COVID-19?" The comments were hidden from public view and were only viewable by I andj Facebook friends. A copy offi] HER comments is attached hereto as Exhibit [X]. 55. On June 4, 2021, PETA employee NE. using a pseudonymous account, posted a series of comments to an NIH Facebook post about social deprivation and adoption. posted the following words: "monkey," "cruel," "PETA," "TORTURE," "TORTURING," "TORMENT, "ANIMALS," "NON-ANIMAL," "primates," "tests," "fake spider," "fake snake," "fright," "experiments," "vacuum," and "burn." Due to the NIH's keyword filters, the comments containing the words "monkey," "cruel," "PETA, "TORTURE," "TORTURING," "TORMENT," "ANIMALS," and {'NON-ANIMALS" were all hidden from public view. A copy oi comments is attached hereto as Exhibit [X]. 56. OnJuly 2, 2021, PETA employee| posted a series of one-word comments to an NIH Facebook post about cancer research. posted the following words: "experiments," "fright," "fake snake," "fake spider," "tests," "cruel," "primates," "primate," "non-animal," "animals," "torment," "torture," "PETA," "monkeys," and "monkey." Due to the NIH's keyword filters, comments Commented [0GC1]: I have checked each post example to confirm each example contains at least 'one word on the NIH keyword filter lists, except where indicated in comments below. The fact stipulation currently attributes these hidden comments to the filters. Please confirm to the best of your ability that each example was hidden due to the filters and not some other mechanism, such as 'through manually hiding a comment or Facebook/Instagram's own filters. oGc 2021-12-06 18:28:00 'Commented [0GC2]: "Non-animals" is not a filtered term. Please investigate whether the NIH Facebook filter "animals" hid this or whether this may have been hidden through some other mechanism, Facebook's own anti-spam filters. oGc 2021-12-06 18:12:00 Commented [FA([3R2]: it is possible this was filtered because it used the term "animals,", or Facebook may have a mechanism that hides comments when they are posted repeatedly in short succession (this would be to block bots and stop spamming). We think itis likely the latter since we have tried posting a comment "non-animals" on an NIH post and it was not blocked. Fine, Amanda (NIH/OD) [E] 2021-12-07 12:18:00 containing the words "cruel," "primates," "primate," {'non-animal," {' "PETA," "monkeys," and "monkey" were all hidden from public view. A copy of i! comments is attached hereto as Exhibit [X]. 57. Despite the NIH's use of keyword blocking, PETA employees have occasionally advocated for animal rights in comments posted to the NIH Facebook page by modifying the spelling of certain words or by replacing filtered words with words conveying similar meanings. For example, on October 16, 2020, EE wrote comments on an NIH Facebook Live video about COVID-19 treatment,
2. 2021-11-10 15:30 Sarah J. Imhoff open
   Hi everyone, David Lankford and I would like to schedule a call with you to give an update on our discussions with the DOJ this week, some additional questions we have and your initial thoughts on DOJ's current proposed next steps. We haven't received any firm advice on what NIH should do moving forward yet, but wanted to get your opinion on DOJ's current next steps to see whether we should have further discussions with them about their proposed strategy. Can you please let me know when your team is available for a discussion this Friday, 11/12? We are open except from 34pm. Thank you, Sarah J. Imhoff, JD, MHSA Senior Attorney Office of the General Counsel Public Health Division, NIH Branch (direct) @nih.gov This e-mail message is intended for the exclusive use of the recipient(s) named above. It may contain information that is protected, privileged, or confidential, and it should not be disseminated, distributed, or copied to persons not authorized to receive such information. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think you have received this e-mail message in error, please notify the sender immediately.
3. 2021-11-10 15:30 Sarah J. Imhoff open
   Hi everyone, David Lankford and I would like to schedule a call with you to give an update on our discussions with the DOJ this week, some additional questions we have and your initial thoughts on DOJ's current proposed next steps. We haven't received any firm advice on what NIH should do moving forward yet, but wanted to get your opinion on DOJ's current next steps to see whether we should have further discussions with them about their proposed strategy. Can you please let me know when your team is available for a discussion this Friday, 11/12? We are open except from 34pm. Thank you, Sarah J. Imhoff, JD, MHSA Senior Attorney Office of the General Counsel Public Health Division, NIH Branch (direct) @nih.gov This e-mail message is intended for the exclusive use of the recipient(s) named above. It may contain information that is protected, privileged, or confidential, and it should not be disseminated, distributed, or copied to persons not authorized to receive such information. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think you have received this e-mail message in error, please notify the sender immediately. spencer (NIH/OD) [E]
4. 2021-11-10 15:30 Sarah J. Imhoff open
   Hi everyone, David Lankford and I would like to schedule a call with you to give an update on our discussions with the DOJ this week, some additional questions we have and your initial thoughts on DOJ's current proposed next steps. We haven't received any firm advice on what NIH should do moving forward yet, but wanted to get your opinion on DOJ's current next steps to see whether we should have further discussions with them about their proposed strategy. Can you please let me know when your team is available for a discussion this Friday, 11/12? We are open except from 34pm. Thank you, Sarah J. Imhoff, JD, MHSA Senior Attorney Office of the General Counsel Public Health Division, NIH Branch (direct) @nih.gov This e-mail message is intended for the exclusive use of the recipient(s) named above. It may contain information that is protected, privileged, or confidential, and it should not be disseminated, distributed, or copied to persons not authorized to receive such information. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think you have received this e-mail message in error, please notify the sender immediately. Questions from Last Call 1. Should NIH should stop its blocking non-viewpoint neutral keywords? NIH should stop blocking the following keywords immediately: Facebook ● Peta ● Petalatino Instagram ● Peta When this is done, please let me know so I can give the date these keywords were no longer blocked to the DOJ. DONE ON 12/3/21 In terms of the following Instagram filters: ● #stopanimaltesting ● #stoptesting ● #stoptestingonanimals The DOJ is leaving this as a policy decision for NIH. The ideal solution would be for NIH to still achieve its desired goals without having these one-sided keywords blocked. For example, if the hashtag #testing is blocked, will that also block #stopanimaltesting, #stoptesting, and #stoptestingonanimals? Or, does the entire phrase need to be blocked for it to work? I do see "testing" is a manual filter, but not hashtag #testing- does this make a difference? ● Entire phrase needs to be put as a filter for it to be blocked. "Testing" would only block "testing." The options are: 1. Remove the above filters and use a different neutral keyword hashtag to achieve the same effect to help stop the barrage of comments from PETA, such as #testing or #animals, if this would work - NIH chooses this option Question: Can we add filters in the future as long as they're neutral? 2. Keep the above filters but add a hashtag representing the pro-animal testing side to achieve neutrality, if there are any commonly used pro-animal testing words or hashtags such as #keepanimaltesting, 3. Remove the filters without additional changes if it isn't making much of a difference, or 4. Keep the filters without additional changes if options #1 and #2 are not feasible and these filters are key to stopping harassment from PETA. If you are considering option #4, while a court may find that these keywords are not viewpoint neutral, the DOJ said the worst that would happen is a court would order NIH to stop filtering these terms as part of its ruling. But, ideally we'd prefer options #1-3 for a stronger case. 2. What are the ramifications if NIH does not win the lawsuit? What does that mean NIH will and will not be able to moderate on its Facebook and Instagram pages? The DOJ explained that if NIH fully loses the case and the judge deems NIH's Facebook and Instagram as public forums and grants an injunction, NIH would still be able to moderate the platforms for the categories of speech that are not protected by the First Amendment, such as obscenity, fighting words, defamation, incitement to induce imminent lawless action, true threats, and solicitations to commit crimes. The DOJ did say that the NIH would not be able to moderate off-topic comments if the injunction is granted. If the NIH only lost on the viewpoint discrimination argument, but the platforms were not viewed as public forums, the DOJ's preliminary opinion is that the comment guidelines would only need a slight modification to clarify that animal testing as a general topic is off limits. Overall, the DOJ's opinion is that even if NIH fully lost the lawsuit, NIH would not be in a worse position than if it did not fight the lawsuit. Essentially, losing the lawsuit would only allow NIH to moderate the areas of speech that are not protected by the First Amendment and to not have any discretion outside of these areas. It appears that NIH not fighting the lawsuit and removing all animal- related filters would have a similar effect, although by not being under a court order NIH would still have discretion to moderate as it pleases, which would include off topic comments. However, if NIH removes all of the animal related filters to get PETA to drop the lawsuit and then manually moderates PETA's off topic comments, PETA may file another lawsuit about the manual moderation so it may not get us very far. Please let us know your thoughts on if you are in agreement with the DOJ's assessment that losing the case versus not fighting it would have a similar effect. Next Steps and Additional Requests for Information The DOJ and PETA have agreed to file a stipulation of facts to avoid discovery, and then the briefs for summary judgement will be drafted based on these facts. Summary judgement means the judge will make a decision on the injunction based on the briefs without holding a full trial. The deadline for the stipulation of facts is next Wednesday, December 8th but this may be pushed back a few days. The DOJ seeks some additional information from the NIH to fill in the facts, outlined below: 1. Manual Moderation of Comments 1. What was the exact date NIH stopped manually moderating comments? I know it was after the lawsuit was filed, but can you give us the date? 9/10/21 OGC 2. When NIH was manually moderating comments, what was the frequency? For example, was the manual hiding of comments weekly? daily? every 4 hours Monday-Friday? constantly? It was sporadic, as we haven't had the support to manually moderate, so we let the filters do most of the work. At most, we'd maybe manually hide a comment 1-2 times a month. If a comment was hidden manually it was most likely because it had an expletive or violent threat, which may not have always been related to PETA. 2. Comment Guidelines- In its complaint, PETA states NIH's Facebook was created on October 14, 2008 (and Instagram created in 2018). From our emails, you stated OGC approved the Comment Guidelines in January 2015. 1. Do you know the exact date the Comment Guidelines become in effect? OGC approved blog comment guidelines January 2015. The guidelines page was posted on March 30, 2015. 2. Before these Comment Guidelines, were any other comment policy or guidelines

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