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2018-10-14 07:00 by Karl Denninger
in Editorial , 320 references Ignore this thread
Private Business? Not So Fast.... *
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There's been plenty of discussion over whether services such as Apple's iTunes, Google Play, Facebook, Twitter and similar can ban users on a purely-discretionary basis.

The common argument is that because they are private companies they can create whatever policies they'd like so long as they do not violate existing civil rights law (e.g. you can't ban someone because they're black.)

But this isn't merely about services such as Facebook, Twitter and similar -- now the ability of content creators to monetize their work is at stake. As of the 21st of September  Infowars has been notified that Paypal is refusing to process payments for subscriptions as well as merchandise.

If you remember in 2017 the notorious neo-Nazi web site Daily Stormer was basically run off the Internet -- first by GoDaddy and then in rapid sequence multiple other firms, including Google.  They were denied the ability to buy DNS and hosting service as they were effectively black-balled by dozens of providers of these basic utility-class services more or less "all at once."

More recently Microsoft threatened Gab.ai with loss of their cloud computing provider, Microsoft's Azure, unless they made changes to their operations.  Microsoft was and remains unwilling to provide a specific list of changes they required or specifics of any alleged violations of their terms of service.

The premise that a private company can refuse service (or sales) to anyone is a fundamental part of Capitalism; the theory is that if one retailer does not wish to do business with you then another will.  But these campaigns of harassment are far more sinister and troubling because they now encompass the utility services that underlie the Internet's infrastructure.

This must not be allowed to stand.

Here's an example.  A hypothetical neo-Nazi wishes to buy a domain and purchase web services to air his views.   However repugnant the right to hold those views and express them is protected by the First Amendment.

Do businesses involved in selling Internet utility services have the right to refuse to sell to him?

To put your views on the Internet you need several different services, not just one.

1. A circuit or means of delivery and interchange with other users on the Internet.  Your cellphone or cable modem is an example of the "end connection" in this regard; in the publisher category this is either an ISP or some sort of a cloud provider.  This circuit is not just a line; in some way you have to connect to an interchange point, much like a phone on a physical wire is useless unless it connects to a switch so you can call other people.

2. A DNS or "nameserver" service.  This is what turns "vile-nazi.com" into an IP address in the format "1.2.3.4" or, in the IPv6 vernacular, "2501:......".  This is an essential service for the modern web because it is not only commonplace it is virtually always true on shared hosting or services of any sort that multiple names are bound to one IP address.  For example "vile-nazi.com" and "sweet-kitty.com" may both point to the same numerical IP address; the server determines which request goes where by the presentation of the domain name.

3. A computer (server), either a physical device or a virtual piece of a larger physical computer.  These days most small and moderate sites are run on virtualizations, not physical machines -- it's much less expensive and most small and moderate-sized sites simply don't need the entire power of a modern computer, so spreading it among other clients makes it less expensive for everyone.

4. The software that takes the message(s) you provide and formats and delivers them to others.  In the web world this is often Apache (a freely available piece of code) although not always by any means -- there are many other packages, some free and some commercial, that perform this function.  In addition there are services that perform this function in other ways (which are software packaged up with a "brand") such as Facebook and Twitter.

The question before us today is where is the line between a company able to refuse service to anyone and not?

I think we can agree that the neo-Nazi cannot be refused electrical service at his house.  Nor can he be refused water, sewer and trash pickup.  He also cannot be refused access to a toll road or bridge, even if privately run, so long as he pays the tolls like everyone else.

But he can be refused seating in a local restaurant.

What's the distinction?

Simple: The neo-Nazi's views are not implicitly endorsed by the establishment in the case of electrical, sewer and toll road service.

It is instantly obvious to an observer that the neo-Nazi's words on Facebook are in fact associated with the company Facebook.  Ditto for those on Twitter. But it isn't obvious to the public that the neo-Nazi bought his DNS or Web Service from GoDaddy or Amazon.  If one was curious you would have to dig for the information.  Even so these providers bear little risk of being co-branded with that neo-Nazi.

As such we should draw through regulation and law some simple bright-line tests.

Facebook can ban whoever it wants, for whatever reason.  So can Twitter.

GoDaddy, however, cannot ban a user from DNS registration no matter the purpose so long their site is legal.  Ditto for Amazon's AWS, Microsoft's Azure or any other cloud or hosting provider. Nor may providers refuse traffic interchange based on the viewpoints contained in their, or their customers, communications.

Twitter, in short, may ban anyone it wishes.  However, should they do so to any material degree there will be created an opportunity for a new Twitter, and anyone may start a competing service with essentially the same feature set.

What do we do with utility services that handle the flow of funds?

Traditional banks or fintech outfits such as PayPal  must not be allowed to discriminate against customers simply because they don't like their political views. Banking and monetary exchange is inherently a utility service and to deny same to any US Citizen as a consequence of their views is to attempt to "starve" a citizen for exercising their constitutionally-protected rights.

Thus the recent PayPal ban of Alex Jones must not stand, Master Card must not be able to ban Robert Spencer and neither can the decision of the bank that recently said "no" to a Florida candidate who supports the legalization of cannabis.  All of these are issue positions used to deny utility services.

We would not allow Florida Power and Light to cut off Nikki Fried's electricity because she supports the legalization of marijuana.  We must not also allow banks and modern utilities such as ISPs, domain providers and similar to effectively destroy people and political speech because they don't like the message, even though it's lawful.