Privately Public

Cloudflare made an exception to their policy of neutrality yesterday and terminated any relationship they had with the Daily Stormer, a neo-Nazi news website. RationalWiki has a good primer but, as you’d expect, even the selected excerpts they’ve cited are vile — discretion is advised.

Matthew Prince, Cloudflare CEO:

Our terms of service reserve the right for us to terminate users of our network at our sole discretion. The tipping point for us making this decision was that the team behind Daily Stormer made the claim that we were secretly supporters of their ideology.

Our team has been thorough and have had thoughtful discussions for years about what the right policy was on censoring. Like a lot of people, we’ve felt angry at these hateful people for a long time but we have followed the law and remained content neutral as a network. We could not remain neutral after these claims of secret support by Cloudflare.

Now, having made that decision, let me explain why it’s so dangerous.

Prince argues that any of the companies that help provide web services, like Cloudflare, set a precedent if they begin regulating what they host or transmit. He doesn’t like being able to wield that kind of power, and remains convinced that Cloudflare should have a neutral stance with what it is used for.

I firmly disagree — regardless of the Daily Stormer’s phony claims of affiliation with Cloudflare, I think Prince should have discontinued their relationship with them long ago.¹ The Daily Stormer has previously been involved in the intimidation of a British politician with Holocaust-related messages, even going so far as to provide instructions to readers. Their users engaged in targeted harassment of a Jewish Congressional candidate from California. This isn’t politics — it’s abuse. Prince and Cloudflare clearly disagree with what the site was publishing, but that stance was undermined when they provided business services to these neo-Nazi assholes.²

K-Sue Park in the New York Times, in an op-ed about the ACLU’s legal support of the right for neo-Nazis to demonstrate in Charlottesville:

I volunteered with the A.C.L.U. as a law student in 2011, and I respect much of its work. But it should rethink how it understands free speech. By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all.

For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment. Numerous other factors in the public sphere chill their voices but amplify others.

Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.

Prince is right about one thing, in particular:

Due Process requires that decisions be public and not arbitrary. It’s why we’ve always said that our policy is to follow the guidance of the law in the jurisdictions in which we operate. Law enforcement, legislators, and courts have the political legitimacy and predictability to make decisions on what content should be restricted. Companies should not.

Of the many serious flaws in the infrastructure of the internet is that most of it is powered by private corporations, many of which are based in the United States. Due to network effects, we have consolidated much of the web around just a handful of them: Amazon is the largest cloud infrastructure provider by far, Google dominates in many fields, over a quarter of the world’s population uses Facebook monthly, and Prince says that Cloudflare handles 10% of internet requests. As he says, they have very little accountability about what is and what is not allowed on their platforms. We have replaced many of the rights afforded to us in our own jurisdictions with the rights given to American companies.

Zeynep Tufekci in 2010:

I argue that this is too limited a view. We have to stop looking at the “Facebook – lone individual” transaction and look at what’s going on at the systemic level. This isn’t just about Facebook, either. This is about the fact that increasing portions of our sociality are now conducted in privately-owned spaces. The implications of this are still playing out.

The latest developments appear to be the next stage to the historical trend of privatization of our publics. Examples of those include the dominance of corporate-owned media over the civic public sphere, outsourcing of many government functions to less-accountable contractors including some aspects of war, increasing reduction of our public spaces to malls and privately-owned town-squares, such as downtown Silver Spring, MD where first-amendment does not apply, etc.

What is currently happening is the privatization of our privates, not just our publics. And this is not a mere question of legality but a lack of legal protections being carried over to a new medium. In some sense, this parallels the lack of carrying of wiretap protections on the phone to the Internet – the social relations did not change but the medium changed allowing for a gap in legal protections.

This is deeply concerning to me — likely because I am not American, and therefore have different expectations as to the rights and roles of private companies, and the kinds of speech that ought to be permissible. So long as we entrust the vast majority of the internet’s infrastructure to private companies, questions like those about Cloudflare’s role in providing services to the Daily Stormer will persist. While we are communicating, publishing, reading, broadcasting, posting, commenting, and living our lives online in the hands of a small group of large, lightly-regulated American companies, we will continue to have a debate over what role they ought to play in regulating whatever they host or transmit.

Update: When comparing the dominance of different large providers, an earlier version of this article stated that WordPress holds a 28% market share. That’s true, but it’s a combination of the WordPress.com hosted service and the WordPress.org software package. Thank you to reader Giacomo for reminding me of this. I have replaced that figure with a reminder of how dominant Amazon’s cloud infrastructure is.