Month: September 2023

I want to thank Eugene again for inviting me to guest-blog last week about my new article, The Five Internet Rights. See Parts I, II, III, IV, and V. I thought I’d follow up with just one more post to respond to some of the reader comments I received on the series.

In the first place, it was certainly an interesting (and educational) experience trying to distill a 100-page, heavily footnoted, academic article into five short-form blog posts. That translation forced me to elide over many important details and caveats that were addressed in the article, some of which readers focused on. For example:

Technical Objections

On the technical side, the savvy DNS practitioner might point out that having one’s domain name suspended doesn’t amount to getting kicked off the internet (just ask gab.com and ar15.com). Often, when a registrar suspends a domain name, it gives the registrant an opportunity to find another registrar. Given that more than a thousand ICANN-accredited registrars currently offer their services to the public, a registrant faced with a suspension for purely ideological reasons can usually find a substitute. Or a truly beleaguered speaker could theoretically become her own registrar (with a fair amount of money and effort). And even if a top-level domain registry (as distinct from a registrar) permanently deprived you of your domain name (say, example.com), you could probably register another string in a different top-level domain (say, example.xyz or even example.ru).

Likewise, even if a regional internet registry (RIR) revoked your IP addresses, you might manage to procure substitute address space within another RIR’s service region. I address these nuances in a section of the article that distinguishes between “strict” and “fuzzy” classes of intermediaries and notes the hierarchy of control from registrars to registries to ICANN. But obviously, that would have been too in the weeds for a blog series (as would have been any description of the seven-layer OSI network stack).

Another important clarification is that even if a person lost her domain name, IP address, and commercial internet connection, those actions would only kick her website off the internet; they wouldn’t necessarily kick her off the internet. She could probably continue to leverage the internet to express her viewpoints using non-web technologies, such as email, FTP, peer-to-peer, or video conferencing. I acknowledge as much in the article. But I also argue that websites enjoy a special status when it comes to online expression. Websites alone combine control, social valence, accessibility, discoverability, authority, and permanency. Not so with spoof-able emails, undiscoverable file objects, or ephemeral Zoom-casts. A viewpoint that is denied a home on every website might not be banished from the internet entirely, but it would be effectively banished from the public internet.

Messy Anecdotes

Some readers focused on certain anecdotes I used to illustrate the evolution of content moderation as it has progressed down the internet stack. Did GoDaddy suspend ar15.com simply because GoDaddy disliked lawfully expressed viewpoints on the site, or did GoDaddy find instances of actual (unlawful) incitement to violence? Did LACNIC revoke IP addresses used by Parler because it wanted to take the unpopular social media platform offline, or was it simply enforcing neutral policies?

As I address in the article, instances of deplatforming will often be messy or ambiguous. Take LACNIC, for example, which supposedly revoked IP addresses belonging to DDoS-Guard (Parler’s cloud hosting provider) because DDoS-Guard had used a shell company in Belize to obtain the addresses. Yet corporations often create local subsidiaries (with no employees) in foreign jurisdictions solely to obtain licenses or other resources granted only to local entities. And as any telecom lawyer who has incorporated local subsidiaries in different countries to obtain telecom licenses for a global OTT service will tell you, that is a perfectly acceptable practice. Moreover, the provision at issue, § 1.14 of the LACNIC Policy Manual, requires only that address holders be “legally constituted within [the LACNIC] service region”; it contains no requirements as to a minimum of employees.

Perhaps DDoS-Guard lost its IP addresses because it did not use them primarily to serve networks in Latin America, which is also contemplated by LACNIC policy. If DDoS-Guard had violated that principle (and I’ve seen no reporting stating that it had), then that might indeed have been a viewpoint-neutral reason for the revocation. But the fact that many address holders are likely in a similar position highlights another problem: the opportunity for selective enforcement. If there is any desire to see an unpopular speaker deplatformed, it will often be possible to find some technical violation. Many intermediaries prohibit “objectionable” content (which is usually not defined), GoDaddy may cancel a domain name if it receives an “excessive amount of complaints” from the public, and RIPE, another RIR, reserves the right to revoke IP addresses from any holder that merely “cause[s] damage” to its name, which theoretically could be interpreted to encompass situations where enough people criticize RIPE for enabling an unpopular site to stay online. As one commentator noted, in 2021, GoFundMe demonetized the Canadian trucker protesters based on only three instances of minor illegality while continuing to fund protests in Portland that “set fire to police stations, vandalized city hall, wielded weapons and injured police officers.”

And just as concerning, I would argue, was Ukraine’s attempt to revoke Russia’s IP addresses and top-level domains. That attempt perhaps serves as a cleaner example of the growing interest in using internet architecture as a tactical weapon (not to take anything away from Ukraine’s cause, which I otherwise support).

In any event, and circling back to my opening remarks, it’s important to understand that The Five Internet Rights is ultimately a theoretical piece. Its point is not to demonize any particular intermediaries or to claim to know their motives. And its thesis doesn’t depend on any particular instances of deplatforming or my interpretation of them. Rather, it offers a theory of interventionism—an answer to the thorny question of when, if ever, the state should intervene in private content moderation.

Doesn’t your thesis require you to support net neutrality?

For the most part, yes. My thesis is that an intermediary’s “content moderation” practices—its decision to revoke a resource used by a third party to publish lawful content on the internet—should be subject to regulation (in the U.S.) if (and perhaps only if) the revocation of that resource presents the risk of viewpoint foreclosure. That is, if (1) that resource class is essential to operating a public website and (2) a person deprived of that resource cannot realistically create a substitute. By my reckoning, three resource classes satisfy this test: networks, IP addresses, and domain names. The “five internet rights” call for non-discrimination protections across these three classes and only these three classes.

That thesis is bound to upset some folks on both the left and the right (no one loves a moderate). Conservatives might complain that it doesn’t touch social media (or any other websites), search engines, app stores, or even cloud computing (inclusive of content delivery networks and DDoS mitigation services). Google would remain free to de-index 4chan, Apple could keep Parler out of the App Store, and Amazon could boot Parler off AWS. After all, none of those actions would take the targeted site permanently offline. By contrast, progressives might oppose any policy that would keep the worst kinds of content online, even if that online presence is limited to backwater websites that few visit or link to.

Net neutrality (before it was repealed) guaranteed only a right to “accessibility”—the right not to have one’s users blocked from accessing her lawful website by their ISPs (their last-mile networks). But it didn’t protect a website operator’s ability to connect her website to the internet in the first place, to maintain a static IP address and a resolvable domain name, or to have her website’s packets faithfully routed through intermediate backbone networks. For those, you need additional rights of connectivity, addressability, nameability, and routability.

Some have told me that they think of the five internet rights as a kind of expanded net neutrality (perhaps it might be called “internet neutrality” or “infrastructure neutrality”). That’s true in a sense, but there’s an important distinction. From the beginning, the concerns that motivated the political left to pursue net neutrality were economic in nature. The left wanted to prevent ISPs from leveraging their networks and their access to subscribers (in telecom parlance, their “terminating access monopolies”) to extract rents from websites in the form of tolls, paid prioritization, or zero-rating or to advantage their OTT services over those of competitors. By contrast, the concerns that have motivated the political right to pass laws like those in Texas and Florida in recent years have been moral in nature (in the deontological sense and not to make any value judgments about the moral rightness of those efforts). The right has wanted to prevent websites like social media platforms from discriminating against users for ideological reasons. Both are non-discrimination enterprises, but their theoretical foundations differ.

What the right and the left should appreciate is that their interests now align. The FCC’s 2015 Open Internet Order prevented ISPs from blocking their subscribers’ access to lawful websites and applications. That broad prohibition wasn’t conditioned on whether an ISP might block a website for economic reasons (to charge a toll or disadvantage a competitor) or for moral reasons (to counter the viewpoints expressed on the site). If the right is concerned about private “censorship” on the internet, it should consider giving the left the economic neutrality it has long desired in exchange for the ideological neutrality the right now craves. Given that the ISP ecosystem already abides by net neutrality principles (whether because of state net neutrality laws, the EU Open Internet Regulation, or market forces), that seems like a small concession. Ideally, the left and the right could agree on a broad neutrality framework that encompasses all aspects of the network (beyond net neutrality’s focus on last-mile, mass market access), as well as DNS and the IP address system, and that protects against both economic and ideological discrimination. (Precisely what the “five internet rights” are designed to do.)

At least, that seems like a sensible compromise to me.

The post Responding to Reader Comments on <i>The Five Internet Rights</i> appeared first on Reason.com.

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As I noted in an earlier post, I’m delighted to report that we have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it’s important, and I’m glad to have a chance to pass along these items. This is from Harriet McConnell Retford, who is a member of the American Indian Law group and Greenberg Traurig LLP and the co-author of an amicus brief in Navajo Nation on behalf of the Coalition of Large Tribes (the views expressed are her own and don’t reflect those of Greenberg Traurig or the Coalition):

The Supreme Court’s decision in Arizona v. Navajo Nation, No. 21-1484 comes at the messy intersection of two of the least functional doctrines in federal Indian law: reserved water rights under Winters v. United States (1908) and Indian trust doctrine under United States v. Mitchell (1980).

It also showcases the now-familiar contrast between the Court’s two different approaches to conservative jurisprudence: the strict formalism of Justice Gorsuch—a stern insistence that the United States live up to the letter of its legal obligations come hell or high water—as opposed to the status-quo, stare decisis driven conservative jurisprudence of Justice Kavanagh and Chief Justice Roberts.

Justice Gorsuch would insist that if the United States serves as “trustee” for the lands and waters of Indian tribes then it has a duty to account for those waters and to make absolutely certain that it does not take any action that would divert those waters to other public or private purposes. The majority instead follows a long line of precedents that allow the United States to assert the privileges of trustee over Indian lands without assuming the corresponding obligations.

To be fair, however, there are significant problems with Arizona v. Navajo Nation as a vehicle for addressing these issues, especially the lack of clarity regarding the remedy being sought, so hopefully further opportunities will come to revisit these doctrines in a cleaner case.

Tribes have water rights in theory, but legal obstacles make the use of these rights prohibitively expensive.

When the United States set aside lands to be reserved as homelands for Indian tribes, it also reserved the water needed to make those lands livable and productive. Winters v. United States (1908). There is no dispute that Indian reservations have a legal right to associated water rights sufficient to build a permanent homeland for their people, and that these water rights apply not only to reservations created by treaty but also to the numerous reservations created by act of Congress or executive order.

The basic problem with reserved water rights is that they are not worth the paper that they are printed on, or rather not printed on. Indian water rights come in three types: unquantified, quantified, and “wet water”—actual water that can be physically delivered. Unquantified water rights are hypothetical water rights to unspecified amount of water and cannot be used until the tribe obtains a legal judgment stating that it has a legal right to specified amount of water from a particular water system.

The process for quantifying water rights is known as a general stream adjudication in which all the claimants to a particular watercourse participate and the court issues a decision determining the amount of water that everyone is entitled to and the priority of their claims in the event that there is not enough water for all rights-holders. Even for minor river systems these cases often drag on for decades, with several stages of multi-week trials and numerous expert witnesses, usually culminating in a settlement that must be approved by act of Congress. Every step of the process is massively contentious, and the legal standard is both vague and appallingly fact-specific.

This complexity is why most tribes have failed to quantify their water rights even a hundred years after Winters was decided. And the mainstream of the Colorado is definitely not a minor river system.

Even if the rights were quantified, they would be largely useless without billions of dollars in infrastructure to treat and transport the water to the places where it is needed. Not only would these pipes and pumps need to be built over some of the rugged terrain in the United States, but the regulatory compliance requirements and environmental litigation would be prohibitively expensive. The Environmental Impact Statement alone would be thousands of pages long, and you could easily end up putting a dozen consultant and lawyer kids through college for each Indian household that finally gets running water.

Water rights in the western United States are usufructuary—use it or lose it—rights and can only be used, not sold, leased, or deliberately left in the river. Any water that is not physically removed by a senior appropriator is available for appropriation by another user—free of charge. There is no market price for water rights, which leads to the predictable shortages, rationing, and misallocation. This system is enormously economically inefficient and it works a great injustice to Indian tribes that do not have the funds to build giant infrastructure projects and are forced to donate their water to California farmers instead.

The entire system is unworkable and needs to change so that the tribes can make use of the valuable water that is their rightful property. My own policy preference would be some combination of marketability and an effort to develop a legal standard for calculating the acre-feet available to a tribe that is more mathematical and formulistic than the current approach, so that simple cases can disposed of quickly and cheaply. This would allow the tribes to lease their water to the best available use and then use that money to pay for improvements to their water delivery capabilities or for other useful projects.

The Navajo Nation, in its suit, had a different theory for how to address this problem. It believed—not without reason—that the United States as trustee over Indian water rights has an obligation to account for them and, at the very least, prevent them from being diverted to other uses.

The United States needs to honor the basic fiduciary duties of a trustee or get out of the Indian trust business—preferably the latter.

These reserved water rights are property of the United States, held in trust for the Tribes. But the United States is a shockingly incompetent trustee and exerts itself to manage these assets only in a haphazard fashion and in response to political pressure. For example, during the original adjudications of the upper basin of the Colorado, the United States asserted water rights on behalf of six tribes but not only refused to include the Navajo Nation but blocked its efforts to intervene on its own behalf.

The mismanagement by the United States might be tolerable if it did nothing at all, thus making it a “trustee” in name only as the majority held in Arizona v. Navajo Nation, but it is in fact active and interfering. Most water projects in the western United States were built with federal funds, and water remains a major target of pork barrel spending. The BIA is routinely expected to sign off on all major tribal land use decisions, a requirement that predictably adds six months of delay and significant regulatory compliance costs for no discernable benefit. Modern tribes have long since given up relying on the BIA and learned to hire their own legal counsel.

The majority is disingenuous about this point, claiming that the Navajo Nation is demanding that “the United States must do more than simply not interfere with the reserved water rights.” Slip. op. at 6 (emphasis in original). The United States interferes heavily and constantly; half the expense of these water projects is the environmental impact statement which is a federal mandate. And the tribes did not invent the prior appropriation doctrine, which favors parties that build large water diversions over people who were simply living and using the waters in the region. Nor did they erect the numerous legal obstacles that make it difficult for tribes to assert their claims.

Under binding Supreme Court precedent, it is perfectly permissible for the United States to take on the powers of the trustee without the associated duties and even to use these powers to serve interests other than those of the beneficial owner of the trust property. “Congress may style its relations with the Indians a trust without assuming all the fiduciary duties of a private trustee, creating a trust relationship that is limited or bare compared to a trust relationship between private parties at common law,” Navajo Nation, quoting U.S. v. Jicarilla Apache Nation (2011). It may even “structure[] the trust relationship to pursue its own policy goals”—goals which conflict with the tribes whose land is being managed.

The Court has shown a willingness to take the “bare trust” concept all the way to its logical conclusion. For example, in U.S. v. Navajo Nation (2003) the BIA approved a below-market royalty rate for Indian coal, over the objections of the Navajo Nation which was actively bargaining on its own behalf. The Court held that this was not a breach of trust; as long as the royalty rate was above the very-low statutory minimum the BIA owed no further legal duties to the Navajo Nation. Even more standard BIA decisions routinely take into account interests besides those of the beneficial owners of the property, mostly environmentalists and other NIMBYs groups.

Although the parties and amicus briefs (including ours) made an effort to distinguish this line of cases, they are an embarrassment and should be overruled. As Justice Gorsuch argued in dissent, when the United States is acting as a trustee, managing tribal assets on behalf of the tribes, it should be held to the same legal standard as a private trustee: “something stricter than the morals of the market place[,] [n]ot honesty alone, but the punctilio of an honor the most sensitive.” Meinhard v. Salmon (N.Y. 1928). The “morals of the marketplace” would actually be a substantial upgrade, which is why tribes always secure their own legal counsel and economic valuations when negotiating important contracts.

The United States should not be allowed to exercise the powers of a trustee without also shouldering the most basic and minimal duties that come with those powers: to identify the property held in trust, segregate that property from the trustee’s own property to the extent possible, and to refrain from conflicts of interest and self-dealing with regard to that property. Restatement (Third) of Trusts § 84 cmt. d (2012). The United States cannot simultaneously act as a trustee, a regulator, and the builder and operator of large dams and other structures that divert water away from tribal owners to more politically powerful interests.

In a broader sense, Arizona v Navajo Nation makes clear the need for a structural reform: the federal government’s Indian trust functions need to be segregated into an independent agency that answers only to its fiduciaries, with a clear understanding that no other groups have standing in court to challenge decisions made on behalf of a tribe.

But if the United States is permitted to administer a “bare trust,” then the tribes should be permitted to politely decline any unwanted trust services and BIA processes and to instead manage their own affairs. Under current law, the tribes suffer all the interference of a meddlesome trustee without any legal guarantee that the trustee uses those powers in their interests.

The post Harriet McConnell Retford on <i>Arizona v. Navajo Nation</i> appeared first on Reason.com.

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‘Free speech absolutist’ Elon Musk is threatening to sue the Anti-Defamation League (ADL). The group has allegedly tried to “kill” the social media platform X, formerly known as Twitter, with false accusations of antisemitism and advertiser boycotts, according to Musk. In a series of posts, the billionaire said that the ADL’s pressure campaign on advertisers to leave X over its content moderation policies was primarily responsible for a 60 percent drop in the site’s U.S. ad revenue.

“If this continues, we will have no choice but to file a defamation suit against, ironically, the ‘Anti-Defamation’ League,” said Musk. “If they lose the defamation suit, we will insist that they drop [sic] the ‘anti’ part of their name.”

If this continues, we will have no choice but to file a defamation suit against, ironically, the “Anti-Defamation” League.

If they lose the defamation suit, we will insist that they drop the the “anti” part of their name, since obviously … ????

— Elon Musk (@elonmusk) September 4, 2023

In a subsequent post, Musk suggested that the ADL was responsible for destroying $22 billion of Twitter’s value.

Based on what we’ve heard from advertisers, ADL seems to be responsible for most of our revenue loss.

Giving them maximum benefit of the doubt, I don’t see any scenario where they’re responsible for less than 10% of the value destruction, so ~$4 billion.

Document discovery of…

— Elon Musk (@elonmusk) September 4, 2023

The dispute between the ADL and X is not new.

Ever since Musk took over the platform late last year, the civil rights organization has accused the company of allowing hateful and antisemitic speech to proliferate through overly lax content moderation policies and practices.

The ADL was one of the groups reporting a dramatic rise in the use of racist and homophobic slurs on Twitter after Musk’s acquisition. It also complained that the company was now less responsive to its requests to remove content.

Back in December 2022, Reason‘s Jacob Sullum argued that the rise in hate speech reported by the ADL and others was being exaggerated. The few thousand additional tweets containing racist and antisemitic slurs were still a tiny fraction of the content on the site.

Nevertheless, the ADL has continued to pressure X to be more aggressive in taking down what it deems hateful content. In a report published last month, the ADL even accused the social media site of running a “hate machine” for suggesting people follow accounts that have tweeted antisemitic content and memes.

The ADL, alongside other civil rights groups, had participated in other pressure campaigns aimed at getting advertisers to leave Facebook over its (supposedly) lax content moderation. In recent years, critics of the ADL also have accused it of being overly partisan and using dodgy methodology to inflate the number of antisemitic incidents it tracks.

In July, X sued the nonprofit Center for Countering Digital Hate over what it claims were baseless accusations of failing to police hate speech.

Musk surely has some cause to dispute a lot of the claims the ADL is making about X. His company is within its rights to decline the group’s content moderation demands. Nevertheless, the ADL is also well within its rights to argue Musk is running a “hate machine” and lobbying advertisers to take their business elsewhere. By threatening legal action against the group, Musk is ceding whatever moral high ground he may have had as a defender of free speech.

Instead, he’s suggesting he might use the court system to bully the group into silencing their criticism of his company. That’s hardly the action of a “free speech absolutist.”

FREE MARKETS

The budget deficit is set to double this year, The Washington Post reports:

After the government’s record spending in 2020 and 2021 to combat the impact of covid-19, the deficit dropped by the greatest amount ever in 2022, falling from close to $3 trillion to roughly $1 trillion. But rather than continue to fall to its pre-pandemic levels, the deficit then shot upward. Budget experts now project that it will probably rise to about $2 trillion for the fiscal year that ends Sept. 30, according to the Committee for a Responsible Federal Budget, a nonpartisan group that advocates for lower deficits.

Explosive piece in the Washington Post (by @JStein_WaPo assisted by @BudgetHawks) showing that the budget deficit is set to ???????????????????????? to $2 trillion this year.

This is basically unprecedented in U.S. history during relative peace and prosperity.????https://t.co/Kzfs78J5jr pic.twitter.com/KmZYXi2Emo

— Brian Riedl ???? ???????? (@Brian_Riedl) September 4, 2023

This explosion in debt is coming despite President Joe Biden’s repeated claims that he’s actually cutting the federal government’s fiscal deficit.

FREE MINDS

Americans are increasingly saying “skool suks.” Recent public opinion polls show that young Americans’ attitudes toward college are turning increasingly negative, according to The New York Times:

The percentage of young adults who said that a college degree is very important fell to 41 percent from 74 percent. Only about a third of Americans now say they have a lot of confidence in higher education. Among young Americans in Generation Z, 45 percent say that a high school diploma is all you need today to “ensure financial security.” And in contrast to the college-focused parents of a decade ago, now almost half of American parents say they’d prefer that their children not enroll in a four-year college.

Perhaps colleges being some of the last institutions to cling to insane COVID restrictions is playing a role:

At the @UMich, students testing covid positive must leave their dorms for 5 days & live in the community. A hotel room or a relative's house is ok.

This cruel policy is designed to spread covid from the university into the wild. It won't stop covid from spreading @umich. pic.twitter.com/Yfn58QKcut

— Jay Bhattacharya (@DrJBhattacharya) September 3, 2023

QUICK LINKS

• According to technology journalist Tim Lee’s parsing of data from the driverless taxi services of Waymo and Cruise, driverless cars might already be safer than human-operated motor vehicles.
• National Review on how the New Deal harmed black Americans.
• France is planning on banning all disposable vapes as part of an “anti-smoking” plan. Good luck with that!
• Former Democratic governor of New Mexico and 2008 presidential candidate Bill Richardson has died.
• Excavations at some Canadian residential schools are failing to turn up human remains in what were reported to be mass graves.
• Attendees are finally leaving Burning Man after a sudden storm made travel out of the desert festival temporarily impossible.

The post 'Free Speech Absolutist' Elon Musk Threatens Anti-Defamation League With Defamation Lawsuit appeared first on Reason.com.

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