The Digital First Amendment Enforcement Act
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Considering sending spam? Read this first.

2019-03-18 07:00 by Karl Denninger
in Editorial , 574 references Ignore this thread
The Digital First Amendment Enforcement Act *
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Whereas the First Amendment guarantees the right to freedom of speech.

Whereas the Internet has taken over from print and other traditional media in the distribution of speech, both on an individual, one-to-one basis and on a one-to-many basis.

Whereas Internet distribution encompasses what was traditionally considered "printed words", live and recorded speech, along with live and recorded video, and likely will encompass further means of communication not yet envisioned.

Whereas the First Amendment's guarantees, unless extended and secured by the dominant media distribution methods of the day is rendered meaningless, an outrage that neither the Founders or contemporary Americans should tolerate.

Therefore it is enacted:

Definitions

  • Utility Internet Services (UIS) are those which are now and become in the future essential to participation in and publication of material on the Internet.  Said services include but are not limited to Domain Name Registration, Domain Name Resolution, Packet-Switched Routing, Dedicated Fixed Wired and Wireless Packet Service (irrespective of whether the wires involved are copper, glass, or other materials not yet invented), and CPU, Disk or Network Resource that are attached to or reachable by the Internet, whether provisioned with an operating system and application software or "bare" and whether provided on a dedicated, leased or "cloud" and shared basis.

  • Application Internet Services (AIS) are those services built upon or run within UIS that are (1) branded, (2) present a consistent presence to a consumer that are distinct from other AIS and do not provide the services of a UIS.  Examples of an AIS include but are not limited to Facebook, Snap, Twitter, The NY Post's online web presence and others.

  • Financial Internet Services (FIS) are those services that are built upon or run with UIS that are (1) branded and (2) primarily provide the functionality of transferring funds to or from one party to another, whether as part of an AIS or separately.  Examples of a FIS include PayPal, Square and Venmo.

  • Viewpoint means any and all political, personal or commercial perspectives, expressed beliefs or statements, whether factual or opinion and irrespective of the means of expression whether verbal, via imagery or otherwise, that is lawful to express under the laws of The United States.  A viewpoint does not encompass depictions or acts that constitute per-se violations of United States law, including but not limited to child pornography or exploitation and the transmission of "spam" in violation of applicable law (e.g. the CAN-SPAM act.)

Prohibited Acts; Penalties and Exceptions

  • Neither a UIS or FIS may enjoin, refuse to provide services to or refuse to transact, interoperate with or otherwise discriminate for or against any person or entity who desires to or does transact with same on the basis of Viewpoint.

  • UIS shall not tamper with, inspect, modify or filter any lawful transmission of content through, by or to a customer, nor shall any such entity intercept, monitor or sell data pertaining to same to third parties for any purpose whatsoever except as specifically directed by a court of competent jurisdiction and subject to a warrant requiring same.  By way of example filtering, diverting, sorting or otherwise tampering with domain name lookup results is a violation of this section as is the examination of stored or in-transit data for any commercial purpose including targeted advertising.

  • An AIS may enjoin, refuse to provide services or refuse to transact on a Viewpoint basis, provided that said refusal does not violate any other federal non-discrimination statute in the United States, including but not limited to discrimination on the basis of race, color or creed and the rules upon which said conduct will be judged are both published and consistently applied.

  • FIS that violates this section shall have any linked federal money transmitting or banking charter suspended for six months upon the first violation, and permanently upon a second or subsequent violation.  Any aggrieved party may bring private civil suit for enforcement of this section and, upon prevailing, is entitled the the greater of $50,000 or treble the actual damages incurred and shall also recover all reasonable attorneys fees and costs.

  • UIS that violations this section shall be fined not less than $100,000 or more than $1 million for each person so injured or impacted for the first violation with the penalties doubling for each subsequent violation without limit.  Any aggrieved party may bring private civil suit for enforcement under this section and, upon prevailing is entitled to the greater of $50,000 or treble the actual damages incurred and shall also recover all reasonable attorneys fees and costs.

  • Nothing in this section shall prohibit content and viewpoint neutral constraints on customers, such as billing for the data, CPU or space consumed, limiting the rate of transactions (e.g. posting) or imposing, on a non-discriminatory basis, fees for service.

  • Nothing in this section shall prohibit the employees of a UIS, FIS or AIS from performing legitimate troubleshooting or investigation for the purpose of correcting "bugs" or other operational problems, or in the furtherance of investigating suspected fraudulent or illegal activity while using or facilitated through their services, provided that the interception and monitoring undertaken is performed only for that purpose and all copies of stored and intercepted data used therein are destroyed when the incident to which same pertains has been resolved.

That should pretty-much do it....

No, PayPal cannot refuse to allow people to send money to someone it considers a purveyor of "hate speech", as such is not illegal under the laws of the United States.

No, GoDaddy cannot refuse a domain registration provided the operator is not violating an actual law of the United States, nor can they terminate an existing registration except for non-payment of their fees or a proved violation of law.

No, the cable company cannot refuse you an Internet connection if you happen to have a picture of yourself in a white hood in your High School or College yearbook.

No, a hosting company cannot refuse to sell service to Glenn Beck on the same terms as it sells service to a LGBT organization.  It can, however, prohibit both from spamming people -- but cannot prohibit Glenn from spamming while allowing the LGBT people to do so.

If you get "deplatformed" or harmed by such a firm you can sue, and if you win not only will they get fined on an escalating basis if a financially-linked firm their federal banking connections will be severed on any second or repeated offense and the amount due to you is large enough to obtain both diversity jurisdiction in Federal Court and to make it hurt the entity who tries to do it.

Facebook or Youtube (for example) can ban people for whatever reason it wants. So can Twitter or, for that matter, The Market Ticker.  However, neither those firms nor any other collection of firms can get together to stop Gab, as a potential competitor, from establishing and maintaining service including taking money through and by it, and if they do all who are so-involved are exposed to ruinous fines and, in the case of a financially-related firm, the extinction of their business.

This does not address the monopolist concentration of power by, for example, Google and Youtube, nor Facebook and Google in the digital advertising realm.  It does, however, address firms and other parties attempting to destroy competing services such as Gab by targeting their ability to transact financially and connect physically to the Internet along with provisioning the services they need to operate on a non-discriminatory basis.  This act will instantly neuter the grievance industry attacks on those who might otherwise provide a legitimate competitive threat to those firms that are "AIS" types of providers yet go far down the road of censorship, and by doing so re-open the marketplace of ideas that so many are trying their damndest to slam shut.

Time to introduce and pass this folks...... right now.