There are a lot of “new people” around in Bitcoin this week, understandably.
As someone who advises cryptocurrency projects – Bitcoin and non-Bitcoin – for a living, one of the things I don’t like to do is invest in this cryptocurrency or that one.
My reasons for this are simple: if I own a token my opinions about the token might be influenced by my position in the token, so to the extent I might hold any cryptocurrency those holdings shouldn’t be allowed to become material to the extent my advice would be affected.
We now are in a truly insane, face-ripping Bitcoin bull run, with new ATHs being breached on a daily and hourly basis. Logic dictates this cannot go on forever. That will not stop new participants in the cryptocurrency markets from thinking otherwise and thinking that they can call the top.
Over the centuries, many an amateur trader has been ruined by mortgaging their home or investing their children’s college tuition funds into speculative investment; Isaac Newton, arguably the most brilliant human being who ever lived, was utterly rekt in the South Sea Bubble after making a huge sum in a bull run and doubling down and reinvesting in the proceeds before a massive crash.
This isn’t to say Bitcoin is or isn’t a bubble or that it will or won’t be the victor in the battle of technologies and ideas which will determine the future of money. These are matters of debate about which reasonable and intelligent people can disagree. It is to say that the simple fact about investing is that (1) it is never risk-free and (2) you are not smarter than the bubble and if you give it enough opportunity, the bubble is going to beat you.
With that said, there are ways that you can “get into” Bitcoin without getting exposed to it. These are not financial bets but bets on the use of your time: an investment of energy with limited upside but no downside that will, if you later choose to invest, be of use to you, as you will have learned more about the field that you’re investing in than you would have otherwise, and maybe could pick up a useful skill or two along the way.
1. Read the White Paper.
The Bitcoin White Paper is the seminal document which touched off the cryptocurrency revolution 12 years ago.
A lot of folks in the crypto business say it’s a bad launching-off point for beginners to start with because it requires total newbies to get familiar with things they may have never heard of before such as hashes or digital signatures. I say if you don’t understand these things you won’t be able to understand the future, and although cryptography will be understood by our digitally native descendants as second nature, those of us unfamiliar with the concepts need to get acquainted with them pronto.
Additionally, I note two things about the Bitcoin White Paper which are notably absent from most of the cryptocurrency white papers which followed:
The functions it claims to provide were present on the date the software was first released for public use.
The paper is not a marketing document and was not selling a product or advertising a token sale.
Learning to distinguish between a technical paper and a sales pitch is an important skill. Learn it sooner rather than later.
2. Run a full node.
“WTF is a full node?” I hear you ask. Great question, and if you don’t know the answer, that’s reason enough to run a full node.
A full node is a computer that stores a copy of the Bitcoin blockchain. Nodes help to verify honest transactions. The more honest nodes there are, the more difficult the Bitcoin network is to corrupt. Right now there are tens of thousands of honest nodes.
You won’t want to run a full node on your own computer as (a) it will suck up CPU (b) it will devour 300 gigs of storage and (c) if it’s a full node, you’ll want to be leaving it turned on most of the time.
This doesn’t require a huge financial commitment with fancy hardware. Here’s my setup:
Simple, right? Just a Raspberry Pi with some external storage. To get your own up and running:
Get a Raspberry Pi 4 with relevant fixins. This starter kit with 8GB of RAM for $119 will be fine.
You’ll also need to get some additional storage as the Pi doesn’t come with enough to store the whole blockchain. This here SanDisk 1TB MicroSD should do the trick. At $200 it’s the most important piece of the puzzle, but you’ll be glad to know you’re now done spending money.
Start up the Pi and mount the external drive. If you don’t know how to do that because the only computer you’ve ever used is a MacBook Air, congratulations! You’ll get to experiment with the command line for the first time.
Once you’ve done all that, congratulations! Without sending a single dollar to a cryptocurrency exchange, you’re providing a critical piece of network infrastructure for the global Bitcoin network, and you’ve acquired more familiarity with Bitcoin than 99.9% of the people who talk about it. Start teaching yourself to code too.
The benefit of doing all of this is that you literally lose nothing. You’re chipping in to the network and learning new skills you’ll never forget.
3. Get on social media and only listen to people who aren’t trying to sell you something.
In the “skeptics” camp are a group of folks who Bitcoin cheerleaders would call curmudgeons, but who I would say simply have stronger views about downside risk. (I used to be one of them but I’ve since sold out.) The current leading skeptics include Tim Swanson, Cas Piancey, David Gerard, Amy Castor, Nouriel Roubini, and Bitfinexed. Cheerleaders are very well funded; skepticism is not, so follow them and people they follow to get a more balanced view.
The last and final step is really the best one. The folks I met in Bitcoin and Ethereum meetup groups and Skype rooms in 2013-14 wound up becoming professional colleagues, customers (when I was running a software company), clients (after I bounced back into the law), and some will be lifelong friends.
I’m cognizant COVID isn’t over yet, but it will be – soon – and once this is over I personally am very much looking forward to attending as many in-person events as I possibly can. There are meetup groups of Bitcoiners in your local area. Find the groups now, and when this COVID nonsense ends make a point of going to meet some of them. In the interim, you’ll probably be able to connect with these folks over other social media via those channels.
By virtue of the fact that you’re reading this blog post, you can be sure that people like you who share your interests about man, money and state are out there, and there are great conversations waiting to be had over a beer.
And that’s it!
Immersing myself in Bitcoinland nearly 8 years ago was the best decision I ever made. Nothing else even comes close. It has resulted in a very rewarding professional life. The space has grown by leaps and bounds, year on year, unceasingly. It will continue to do so until decentralized systems of all kinds have conquered the Earth, and put control over data and money where it belongs – back in the hands of the people. Today is as good a time to jump in as any.
Yesterday, Congresswoman and “Squad” member Rashida Tlaib sent cryptotwitter into a tizzy with the following proposal:
The bill’s academic/think tank proponents followed up with posts such as this:
There’s a lot to unpack here and a lot of crossed wires, mostly due to (I suspect) the fact that the proponents of the bill are MMT theorists and not engineers. Whilst they may have fairly elaborate theories about what function cryptocurrency serves (and in particular how it has the potential to undermine their macro strategy of money printer go brr) they may have a somewhat looser grip on how cryptocurrency actually works.
1. What the bill does
I preface this essay by saying that stablecoin issuers should be licensed. What sort of licence is anybody’s guess. Currently I should think a money transmitter licence would be the thing but there’s no reason in principle why an issuer shouldn’t go get a bank licence as well.
The STABLE Act does way more than that, and appears to require any blockchain that runs stablecoin code to be licensed, among other things. For example:
The bill outlaws the issuance of a stablecoin otherwise than by “an insured depository instiution that is a member of the Federal Reserve System,” i.e. a bank.
The bill bans the issuance of stablecoins, provision of “stablecoin-related” services, or “otherwise engaging in any stablecoin-related commercial activity, including activity involving stablecoins issued by other persons, without obtaining written approval in advance… from the appropriate Federal banking agency.
The bill creates a requirement for preapproval, among other things, for “otherwise engaging in any stablecoin-related commercial activity.”
It’s a swing and a miss:
First, the largest stablecoins available in the marketplace – which shall remain nameless for the purposes of this blog post – have lists of compliance issues a mile long already. Adding another requirement doesn’t answer the question of how we get non-compliant stablecoins to adhere to the rules that currently exist.
Second, one of the stated purposes of this bill is to protect underserved communities from being discriminated against by stablecoin issuers. To this I would reply that any stablecoin issuer worth doing business with will operate in New York State and need to comply with the provisions of the NY Human Rights Law which prohibits discrimination. (For the disabled, I note also that the Second Circuit thinks that under Title III of the ADA there is no requirement for a “public accommodation” to have a physical location, so that aspect of equal access might also be covered by New York-based stablecoin providers.) Additonally, given the regulatory problems with some existing stablecoins and in particular their role as dollar liquidity providers for offshore exchanges with lax KYC that can’t get banking access, it is likely that those who would access stablecoin markets don’t need to be protected from denial of access to stablecoins, but rather they need to be protected from most of the stablecoins they are likely to encounter in the wild.
Third, the plain text of the bill presents the bizarre possibility, one which is apparently intended by the drafters, that node operation on any unlicensed chain which supported any stablecoin would be unlawful and, pursuant to 12 U.S. Code § 1833a, subject to fines of up to $1,000,000. Criminal penalties might also be possible. The rest of this post deals with this point.
2. Introducing the Ethereum Rule of Statutory Construction
Lawyers have these little critters called “canons of statutory construction” we use to interpret laws. For example, in England they have something called “the golden rule,” which basically means that when trying to understand what a law calls for, you give the statute its plain and ordinary meaning unless doing so would render the statute absurd. In the alternative there is an approach called the “purposive approach,” which is generally used to interpret indirectly-effective EU law, where interpretation of the rule is driven by the purpose for which the statute is drafted.
In America, by contrast, you may have heard of “textualism,” “originalism” or the “living Constitution” approach in recent Supreme Court hearings. It’s the same game, choosing which rules we use to understand language.
I propose one for cryptocurrency. I call it the Ethereum Rule, and it holds that “A law is to be given its plain and ordinary meaning unless it would require Ethereum (as it exists in 2020) to do [X] in the manner a corporation would, including but not limiting to applying for a licence, in which case the law is absurd.”
This bill appears to require just that. Although the definition of “stablecoin” in the Act seems to exclude cryptocurrencies like Ethereum, the issue isn’t that the definition is overbroad but that the bill seeks to force anyone engaging with stablecoins to do so under the aegis of the Federal Reserve System. Just read the plain language:
“it shall be unlawful for any person to… otherwise engage in any stablecoin-related commercial activity, including activity involving stablecoins issued by other persons, without obtaining written approval in advance… from the appropriate Federal banking agency”
This doesn’t leave a lot of wiggle room: “any” means “any,” and “any stablecoin-related commercial activity” is a broad brush when we consider that any user of any smart contract blockchain will be verifying stablecoin transactions to some extent.
Lest we think that we’re misreading the proposal, its own proponents publicly agree with this interpretation:
To this I respond with the Ethereum Rule of Statutory Construction. Ethereum has no central owners, forks regularly and is currently regulated as a commodity. If your law requires that kind of a system to get a bank charter, not only will the law fail to effectively control the blockchain, but the regulators tasked with enforcing it will have difficulty finding someone with standing to sign the application.
The STABLE Act says that blockchain users will be permitted to transact, if only they would first achieve the impossible. This is an absurd state of affairs, and a strong indication that, as-written, the STABLE Act would not make good law.
3. Would the STABLE Act actually make running a node illegal?
Of course, there is zero chance that the STABLE Act is going to become law during this Congress. However, coin people – and Ethereum people in particular – have been asking the question: what if it did?
The answer is not straightforward. Peter van Valkenburgh over at Coin Center says that the prohibition on “stablecoin-related commercial activity” hands-down applies to node operators or anyone running the Ethereum client:
The logical consequence of the bill is that if any person is running software that validates Dai or other stablecoin smart contracts they will, themselves, be violating the law unless they are a chartered bank.
Though a reasonable conclusion, and on balance likely the correct one, it is not a forgone one, since the current language of the STABLE Act – being both overbroad and imprecise – leaves plenty of scope to poke holes in it. For example, it is not clear whether operating a node gratis (as many full nodes do) counts as “stablecoin-related commercial activity” if done on a non-commercial basis. Seeing as nodes are not ordinarily compensated it is certainly conceivable that there will be situations where node operation is sub-commercial if not non-commercial. Research would be required to find the answer here.
Additionally, it is not immediately apparent to me that running a full node is “stablecoin-related commercial activity” given that many if not most cryptocurrency transactions don’t have a stablecoin component. The statute’s lack of specificity narrows its application. If it said “any commercial activity related to, or any communication which may facilitate, any stablecoin transaction” that would be one thing. But that’s not what the language says. Properly understood, Ethereum is a rail, and just as we don’t refer to the act of driving a car as being “jogging related” just because cars and joggers use the same roads, we shouldn’t refer to the act of running a node as “stablecoin related” just because stablecoin transactions are broadcast alongside all other transactions via devp2p. Again, more research would be needed to see whether a court would agree with that interpretation.
There is another matter, in that in my view the operator of a cryptocurrency node is capable of being a provider of an interactive computer service under a legislative provision known as Section 230 of the Communications Decency Act (47 U.S. Code 230(c)(1)). This law states in relevant part that providers of interactive computer services, properly “information content providers,” are not treated as the publisher or speaker of, and therefore have no liability for, content which third parties submit to their servers, subject to certain limited exceptions.
Coin Center has called, in the past, for a node operation safe harbor similar to Section 230. Since the blockchain is really little more than a published, cryptographically verifiable feed of transactions that have been authorized by the Bitcoin network (and other blockchains, the same for their corresponding native assets), I tend to think that it’s more likely than not that a blockchain application falls within the confines of Section 230. But I freely admit that whether a node operator qualifies for the exemption is an open question. The law defines an “information content provider” as a “system… provider that provides or enables computer access by multiple users to a computer server.” I’d have to do a little research to see if there are any precedents dealing with the question of what a “server” constitutes for this purpose, but at least at first glance there is an argument to be made that operating a full node on a blockchain, which in its essence is a distributed timestamp server, could qualify, at least insofar as it pertains to third party financial communications that are being relayed by that node.
Section 230, however, only confers immunity from state criminal law and civil actions. It has no effect on federal criminal law, and there are criminal sanctions in the FDI Act (see e.g. 12 U.S. Code § 1818(g)). To figure out whether a full node could be captured within the STABLE Act the first thing to do is read the statute and try to determine whether providing peer to peer network access services counts as “stablecoin-related commercial activity.” If not, then node operation is not captured by the statute and the analysis ends. If so, the next questions would be (a) whether node operators were covered by Section 230(c)(1) and (b) whether the STABLE Act impliedly narrowed or repealed Section 230’s application to node operators insofar as the nodes processed transactions related to stablecoins. After answering those questions the picture would be clearer.
In terms of the current federal picture, we know that providing network access services is not equivalent to money transmission, that FinCEN doesn’t consider node operation to be money transmission, and that for most federal crimes accessory liability requires heightened knowledge and participation of the kind we don’t usually ascribe to node operators. This is perhaps why, to the best of my knowledge, there have been no prosecutions for running a Bitcoin full node to date.
Nor should there be, now or ever, and if American leadership in the crypto arena is to continue it might be worthwhile, given how wrongheaded the STABLE Act is – not on stablecoin licensure, as I think stablecoins are properly the subject of regulation, but on blockchain node licensure – to revisit Coin Center’s proposal for a blockchain node safe harbor that clearly and unambiguously accords blockchain nodes the status enjoyed by other online publishers.
Section 230’s most learned interpreter, Jeff Kosseff, titled his book on the provision “the twenty-six words that created the Internet.” I note for the record that none of Facebook, Google, Twitter or YouTube were founded in Europe. If America is to lead the decentralized Internet we would do well to look to Section 230 as an example of how to do Internet regulation the right way.
Lately there has been a veritable litany of stupidity emanating from Republicans and “conservatives” of all stripes who claim they are being censored by mainstream “big tech” companies like Twitter and Facebook.
Global social media companies face an almost impossible task with their moderation practices. In most cases, these companies have global operations. As a consequence, the companies tend to adhere to global standards.
Speaking as one admitted to practice law in the U.S. and in Europe, the United States has the most expansive speech laws in the entire world. Speech which is protected in the United States is, very often, illegal overseas. As a consequence, tech companies have had to adapt to overseas legal norms. In terms of crafting a company-wide policy which can be uniformly applied across its business, this usually means that they adhere to the lowest common denominator.
Upon a routine review of our actions, we determined that we restricted access to 17 items in error during this period, including 11 items that should have been deleted for violating the Community Standards and six items on which we should have taken no action. We have corrected these mistakes.
Meanwhile, NPR’s Eleanor Beardsley reports from Paris that Twitter “has agreed to remove French-language anti-Semitic tweets that have flooded the micro-blogging site in recent days. The union of French Jewish students had said it would seek an injunction against Twitter if it did not remove offensive, anti-Jewish messages and photos that have proliferated since October 10.”
News organization Quartz tells The Verge that Apple has removed its mobile app from the Chinese version of its App Store after complaints from the Chinese government. According to Quartz, this is due to the publication’s ongoing coverage of the Hong Kong protests, and the company says its entire website has also been blocked from being accessed in mainland China.
All of this speech – no matter how distasteful or offensive – is legal in the United States. So, Republicans, take note – this is not (necessarily) about you. Facebook and Twitter take sides all over the world. These companies censor anyone, anywhere. They have to do this by virtue of the fact that they have global operations and local staff.
Back at home, there is another dimension that these companies must consider: although the American government is legally barred from interfering with speech, and American litigants are precluded from suing companies for the speech expressed by their users, American activist groups which have significant influence in Silicon Valley, which shall remain nameless for the purposes of this exercise but which, suffice it to say, have been very successful in ensuring that individuals and companies on the right are denied access to mainstream technology platforms, exert considerable pressure on these companies in furtherance of their agendas. And companies respond. By way of example, the group Sleeping Giants successfully mounted an ad boycott campaign against Breitbart News; companies like Check My Ads offer services to companies who don’t want ad budgets being funnelled to groups and organizations they do not support.
When Twitter or Facebook bans a user or adopts a content policy as a result of public criticism – for example, Facebook’s platformwide ban on content pertaining to a particularly popular “conspiracy theory” which will also go nameless in this post – they are responding to public pressure, and revenue pressure, much in the same way that any other company would.
Working through hypothetical Section 230 reform scenarios to show why amending the law won’t achieve the desired outcome
In the time it takes to repeal Section 230 or win an antitrust suit the GOP could lose three Presidential elections. If the President and everyone else opened accounts on newer technology platforms that expressly place free speech front and center in their moderation policies tomorrow, he would kneecap Twitter and Facebook forever.
There are three potential pathways for the future of this statute.
Option 1: Repeal Section 230 wholesale
The first, most often tweeted by the President of the United States, is the repeal of Section 230.
This is, in my view, the least realistic and would likely result in the end of social media as a business. This is not an exaggeration; if platforms became liable for the speech of their speakers (as platforms are publishers in the plain and ordinary meaning of the word) any tortious speech by any person would expose the platform to liability as a principal. This is currently the situation in the UK which, I note, has a notice-and-takedown procedure similar to the U.S.’ DMCA notice-and-takedown procedure in Section 5 of that country’s Defamation Act 2013. The provision reads:
It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3)The defence is defeated if the claimant shows that—
(a)it was not possible for the claimant to identify the person who posted the statement,
(b)the claimant gave the operator a notice of complaint in relation to the statement, and
(c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
Failure to respond to a notice of complaint in one of the prescribed methods results in the website operator becoming liable for defamation under UK law. I note the UK is not the home of any large social media companies and suggest for the purposes of this discussion that the absence of a Section 230-style safe harbor may be part of the reason.
Option 2: Modify Section 230 to water down the scope of the immunity
A second pathway involves some kind of statutory reform. There are various proposals. Let’s just play it out to see what hurdles those proposals have to overcome in order to achieve the result that the whiny Republicans want.
Current situation is as follows: Twitter censors Alice. Alice sues Twitter. Twitter moves to dismiss on Section 230(c)(2). Case ends.
Now let’s say Section 230 is repealed: Twitter updates terms and conditions. Alice grants Twitter right to censor her. Twitter censors Alice. Alice sues Twitter. Twitter files motion to dismiss. Alice loses. Case ends.
Now let’s say Section 230 is reformed: Senator Josh Hawley passes reform bill that says Twitter must be “neutral,” whatever that means. Twitter updates terms stating that users consent to its non-neutrality. Twitter censors Alice. Alice sues Twitter.
Twitter moves to dismiss on the basis that “Hawley’s Law” is an unconstitutional prior restraint, a content based restriction on speech that is subject to strict scrutiny (default result: government loses) because it prevents Twitter from publishing what it chooses to publish on its publishing platform.
Yes, Twitter is a publisher. No, it doesn’t matter one whit for the purposes of Section 230.
In the alternative Twitter points to the updated contract.
Twitter might win on the constitutional claim. In terms of the breach of contract claim, no proposals for Section 230 that I have seen prevent the parties from contracting out or (in the alternative) indemnifying the website for liability arising from user speech (so e.g. if Joe Bloggs tweets a defamatory statement, and Twitter is sued, Twitter would then be able to recover its costs in defending the action from Joe Bloggs).
Under this scenario, where there were any possibility of Twitter becoming liable for user speech, Twitter would be very unlikely to permit users to create anonymous accounts, because it would want users to know (a) that it knows who they are and (b) that it knows where to find them in the event that Twitter finds itself on the receiving end of a defamation claim arising from that user’s speech.
This is the point where legally savvy Internet commenters are keen to remind us the First Amendment doesn’t bind Twitter. It binds the state. In my view it likely binds the American state in such a manner as to prohibit the American state’s interference with Twitter’s moderation rules, although if Section 230 “reform” proposals eventually led to that it would be an issue of first impression for the courts. But in terms of the extent to which web services’ moderation policies are coextensive with the First Amendment right, 230 reform – making platforms liable for speech – creates commercial and legal pressures on companies like Twitter which incentivize them to restrain the scope of permitted expression on their platforms, instead of expanding it.
Option 3 (the best option): Do nothing and let the market decide
The third pathway is to leave Section 230 alone.
Before proceeding with a reform proposal, the key question for anyone who would pass a law and believes in free speech should be this:
Does the proposal expand the scope of free expression on the Internet, or does it restrict it?
On balance, 230 reform that withdraws protections for technology companies probably winds up restricting free expression more than it expands it, because it will create commercial pressures to eliminate anonymous speech and expand the scope of moderation to remove more speech, speech which is less objectionable than that which is currently removed.
It also will act to increase compliance burdens, much as the European Union’s passage of the GDPR did, which will have the effect of “pulling up the ladder” behind existing Web behemoths to the detriment of smaller, newer competitors with moderation and content display policies more in line with the First and Fourth Amendment’s intentions (companies like Bitchute, LBRY, Minds, Gab, Parler, DuckDuckGo and Protonmail immediately come to mind as the credible challengers to the existing social, search and e-mail stacks).
“Section 230 reform” – government intervention – will be stymied by contract and First Amendment lawsuits. It will not make the Internet safer. It will not promote competition. It will not make the Internet freer. Reform proposals that fail to understand the commercial and foreign legal pressures that have led these companies to adopt the policies that they have are doomed to failure.
What is not doomed to failure – the one thing which has always worked when there is market demand for a service – is competition and innovation. That’s how we do things in America.
Facebook felled MySpace. One day, sooner or later, another company will take down Facebook. The best thing you can all do if you want to promote Internet freedom is to stop using Big Tech’s services and to use the services of American companies whose values align with your own.
In the wake of the Portland rioting and subsequent deployment of federal law enforcement officers in that city to protect federal property and enforce federal law, there has been something of a trend on that dystopian hellscape of a microblogging site – Twitter – where the sort of people who normally oppose libertarianism and/or don’t understand it suddenly had the nerve to criticize libertarians’ bona fides and ask for our help.
Such as this senator from Hawaii:
To which I retorted (in the only acceptable form of retort, a quote-tweet):
This verified reply guy added:
Or see, for example, this “gun violence” activist, who seems to be… calling for gun violence? Very strange.
This response from Rep. Thomas Massie more or less sums up why most libertarians look at something like the situation in Portland and shrug:
Libertarian ideology is much-misunderstood by its detractors and, often enough, also misunderstood by those who claim to be its adherents. Unlike, say, Marxism or Critical Theory, libertarian doctrine is not complex; though there are analytical frameworks, there are no overly formal dialectics or theories, there are few leaders, there is no scripture.
There is little officialdom. Which perhaps is to be expected given that libertarianism is a belief system that focuses on individual liberty above all else. It should be accessible to anyone, not just navel-gazing philosophy graduate students. The truth of the theory is not taught, but experienced: each libertarian knows that the improvement of his or her lot is determined not by a faraway ruler or an abstract political party but by concrete actions he or she deliberately takes in their everyday life.
“I am the master of my fate, I am the captain of my soul.” The ideology seeks to maximize individual freedom to allow us the greatest amount of latitude to pursue our individual ends in the limited time we have on Earth.
The closest thing to an agreed upon maxim for modern American libertarianism – the idea I find is most widely held – is something known as the “non-aggression principle” or NAP. Put simply, the NAP states that “initiating aggression is wrong,” or more simply, “aggression is wrong.”
It seeks to understand the world in bilateral terms (Alice and Bob are the only people in existence; Alice points a gun to Bob’s head and orders him to do something in circumstances where Bob has done nothing wrong to Alice – indeed he has no relationship to Alice prior to this moment. Is Alice in the right to do this, if she feels her cause is sufficiently meritorious?) and then scales those analogies up to society at large.
At what point does a coercive action which would be reprehensible and criminal if done by one person to another person become acceptable if it is done by many people to one person? Two to one? Three to one? Fifty to one? A million to one? There is, of course, no answer to this question; libertarians say that this is because the use of coercive force is wrong no matter how many people require its use against how few.
Of course, we have to live in a society and the hypothetical Hobbesian war of all against all is not a reality on the ground (except perhaps in places like the Seattle CHAZ), so the essential task of those of us who call ourselves libertarians is on how to devise a system that maximizes freedom – of speech, to keep and bear arms, from invasion of privacy, etc. – and opportunity while providing the necessary coercive levers, but no more than that, to ensure that personal and property crime do not go unpunished and individuals are free to choose the courses of their own lives.
The “ideal” situation here, too, is unknown; different libertarians will have different opinions about what rules are needed to bring this freedom-maximizing, coercion-minimizing state about. For my part, I generally think that the English common law circa 1777 (the last year before the imposition of the first income tax in the English-speaking world) is a good guidepost, with consequential updates to account for financial regulation and the like; many of my friends give me a hard time for this, arguing that finance should be totally deregulated and remedies for e.g. sketchy initial coin offerings should be private rather than at the direction of enforcement agencies of the state. Antitrust law and enforcement is another common point of contention.
Traditionally libertarian policy positions
With this as our background, we arrive at the current discussion, of camouflaged, militarized federal police conducting arrests for violations of federal law on the streets of Portland.
And now, to quote a famous internet meme, that the world is on fire and the barbarians are at the gate you have the audacity to come to the libertarians for help?
Libertarians want to be left alone. Trying to draft libertarians into a cause misunderstands the sort of people libertarians are, particularly when the cause in question is on behalf of not peaceful protestors, but rather people who are willing to set federal buildings on fire and assault federal agents when they don’t get their way in federal politics. Libertarians realize that these are the sort of people that the Constitution was designed to contain.
When this weird historical moment passes and sanity is restored, I’m sure many libertarians would be happy to explain to you – those who now seek our input on your pet cause – of the ideology’s extreme discomfort with the fact that the government accounts for greater than 50% of GDP and its views on the imperfect implementation of the First, Second, Fourth, Fifth, Sixth, and Tenth Amendments, among other things. Libertarians will also be happy to explain how they think long term structural change in the United States that will benefit all can come about by leaving Americans alone to make individual choices.
But you weren’t listening to the libertarians before. The libertarians likely suspect you won’t be listening to them later if your “side” wins on November 3rd.
What of the protests, then?
What the “liberty” position on violent riots (where both peaceful protestors and the use of excessive force by police may also each be present) should be
Rioting is bad (and illegal). The use of excessive force or carrying out an unlawful arrest is also bad (and illegal). Peaceful protest is good (and legal). Legitimate use of police power to protect public property from destruction – property belonging to the judiciary, no less – is also good (and legal). Peaceful protestors may have violent elements hidden within their ranks. A line of good cops may have a few who step over the line. Portland is a bad, high tension situation where good people might accidentally or intentionally do bad things and bad people might accidentally or intentionally do bad things, with or without the approval – express or tacit – of other people on their “side.” All of this is capable of being true at the same time.
“If you’re not on the side of the protestors, you adopt the actions of every policeman whether justified or not” is a binary argument – and a false choice – being rolled out with increasing frequency in an election year by people who should know better, such as WaPo journalist and militarized policing writer Radley Balko:
The Non-Aggression Principle means you don’t start fights. It also means that you don’t take the same side as people who start fights. If two groups are engaged in a cycle of escalating violencethe NAP says it’s OK – even moral – to not get involved.
I think if you ask your “average” libertarian what they think, they’d say that they support free speech, but that “setting buildings on fire and throwing things at people who aren’t throwing things at you is wrong” is something most of us learned when we were four years old. No volume of class-based revolutionary theory changes the analysis. Accordingly, the “average” libertarian is likely to think setting federal courthouses on fire or throwing projectiles at federal workers is also wrong and, quite apart from that, an incredibly stupid thing to do. In any event, the rioters’ conduct is way over the line for constitutionally-protected advocacy of violence set down by Brandenburg v. Ohio, and is indeed so far over that line that anyone engaged in that activity, regardless of motivations, should expect to meet the full force of the law.
As to how those consequences are handed down, the “average” libertarian might say something along the lines of “we hope and expect that due process will be afforded to anyone accused of a crime, that anyone accused will be presumed innocent until proven guilty, and that the U.S. Attorney will conduct its investigation into federal law enforcement activity impartially.”
Beyond that, whilst libertarian pamphlets generally read more like Andy Griffith than Jacques Derrida, and we may be plain-speaking, we aren’t stupid. I suspect that many of the officials and think-tankers presently complaining about the administrative state’s boots-on-the-ground in Portland should be all-too-happy to wield it as political appointees if the Blue Tribe wins the election on November 3rd, much as the Red Tribe wields it now. Indeed, the administrative state about which they presently complain was created on their watch.
All of which is to say, peaceful protest is great, lawbreaking yahoos should be prosecuted, the police should not be militarized, excessive force should not be used, and libertarians who don’t live in Portland – and, indeed, even those who do – didn’t start this fight, don’t have a dog in it, and are 100% justified in sitting this one out.
The best time to discuss police militarization was years ago. The next best time is after the election when libertarian positions won’t be co-opted to support illiberal agendas. Anyone trying to draft the libertarians into taking a partisan position with regard to the Portland protests/riots/whatever isn’t on the libertarians’ side. And the libertarians know it.
“The Lives of Others” is a film about an agent of the East German secret police, the Ministerium für Staatsicherheit or the Stasi, which employed hundreds of thousands of East German citizens to spy on their fellow-citizens. As a result, one could never be sure whether one was speaking privately or not.
If you can’t speak privately, you can’t share thoughts.
If you can’t think, you can’t organize.
If you can’t organize, you can’t resist.
If you can’t resist, you’ll remain oppressed.
Per Wikipedia, an unreliable but nonetheless convenient source,
The Stasi had 90,000 full-time employees who were assisted by 170,000 full-time unofficial collaborators (Inoffizielle Mitarbeiter); together these made up 1 in 63 (nearly 2%) of the entire East German population. Together with these, a much larger number of occasional informers brought up the total to 1 per 6.5 persons.
For context, the U.S. FBI – a vast and powerful law enforcement agency with a far larger country, and indeed world, to patrol – has a mere 35,000 employees. That should give you some idea of how insidious and pervasive the East German apparatus was.
In the United States, things are different. Companies like Clubhouse or Facebook not only do not act as data firehoses for the government, they are legally prohibited from doing so.
To understand why nobody should ever record Clubhouse calls, and to contextualize it among a wider internet privacy picture, we first need an electronic privacy crash course.
Our story begins in 1791.
The Constitution: your rights vs the government
The U.S. has among some of the strongest procedural protections for criminal defendants in the entire world. These protections start with the Fourth Amendment to the U.S. Constitution, ratified shortly after the Constitution itself, which guarantees something like a right to privacy. It reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
There’s a lot going on here, so let’s break it down.
“The right of the people” is an individual right rather than a collective one.
“…to be secure in their persons, houses, papers and effects” is also specific. The threshold of the home, in particular, is where the Fourth Amendment’s power is at its apex; see e.g. Payton v. New York, 445 U.S. 573 (1980).
Few people know that you don’t actually have a Fourth Amendment right to prevent a police officer from searching the field outside of your house. Nor does the right prevent a search of your boat by the Coast Guard exercising “plenary authority… to stop and board vessels” (although ideally the Coast Guard is expected to show up to save you from the proverbial boating accident, not to search your vessel before you have it). Nor do you have many rights when crossing the border per the border search exception.
“…against unreasonable searches and seizures, shall not be violated” is also interesting language. The fact is that not all searches are unreasonable. The Fourth Amendment’s perimeter extends around anywhere that a “reasonable expectation of privacy” exists, and no further. Katz et seq. This means that while one may have a reasonable expectation of privacy on, say, a phone call in a two-party consent state, or in one’s own home, one does not have a reasonable expectation of privacy in, say, third party records held by your ISP, or in an open channel on a service like Clubhouse (with a notable exception of cell phone location records ever since Carpenter v. United States was decided in 2018).
You also don’t have a reasonable expectation of privacy on the blockchain. As I told Decrypt this morning, you have as reasonable an expectation of privacy regarding information you put on the Bitcoin blockchain as you would with information you spray paint on a wall of a downtown building,
“…and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized” is what we lawyers know as the warrant requirement. This was created as a response to the (English colonial) practice of issuing what were known as “general warrants” which authorized a sheriff or other Crown officer to basically do whatever the hell they wanted. “Seize that man,” “search that house.” No reason was required.
The Americans weren’t particularly fond of that practice. So in the Constitution we find a requirement that (a) there must be probable cause to issue the warrant and (b) that probable cause must be supported by oath or affirmation. This is why police officers set out statements of facts and swear it to a magistrate before arrest or search warrants are issued. Because back in the day, 300 years ago, this was not a requirement. Furthermore, warrants must describe with particularity “the place to be searched, and the persons or things to be seized.” If the warrant says “search the car,” it’s unreasonable to search the house. If the warrant says “search the house for a sixty-inch television and seize it,” it’s unreasonable to rifle through the sock drawers during the search. Et cetera.
This of course is the briefest summary of the Fourth Amendment. If you would like to learn more, head down to your local law school and enroll in criminal procedure.
Right to privacy on the Interweb
On the Internet you don’t have much if any Fourth Amendment rights because, let’s face it, we’re all doing this on someone else’s computer. The Fourth Amendment protects “persons, houses, papers and effects.” If Alice is the user of a service and Bob is the service operator, Alice’s files on Bob’s computer aren’t Alice’s records. They are Bob’s. Accordingly the Fourth Amendment privilege over those records is Bob’s, not Alice’s, to assert.
Recognizing this, the U.S. Congress actually did something productive and passed the Electronic Communications Privacy Act in 1986. Among the provisions is something known as the Stored Communications Act, 18 U.S. C. § 2701 – 2713.
Again speaking in very general terms, the Stored Communications Act sets out the conditions on which an electronic service provider e.g. Twitter is able to render voluntary disclosure of communications and customer records to third parties, and when it is not.
One of the principal prohibitions is against providing data to law enforcement without a warrant or other legal process. 2702(b)(6)-(7) and 8 set out when communications can be voluntarily disclosed to a law enforcement agency, including where there’s inadvertent discovery of a crime and discovery or existence of an emergency that poses danger of death or serious bodily injury that requires immediate disclosure. (Mind you, it’s possible for a law enforcement officer to say something is an emergency when it isn’t, and not really the place of an information content provider to inquire further with a request for operational information. In my experience U.S. law enforcement doesn’t make emergency requests for trivial matters.) Similar provisions exist for customer records e.g. IP addresses, user account information, login history, whatever.
Under any other circumstance, voluntary provision of this data to law enforcement is not allowed. Law enforcement must obtain a subpoena, 2703(d) order, or search warrant to obtain the relevant records (with subpoenas being limited to customer records only and not the content of communications). This requirement is not created by the Fourth Amendment; it is created by statute, and was created out of recognition that, without it, law enforcement may be able to obtain Americans’ records by applying inappropriate informal pressure on electronic service providers to disclose these third party records over which American citizens had no standing to assert a Fourth Amendment right (as it’s not Alice’s record – it’s Bob’s).
Right to privacy from intrusions by other people
We also have a right to be secure from other people snooping on us. Not in the Constitution, but in statute and common law.
This right includes a range of privacy torts (defamation, intrusion upon seclusion, false light, invasion of privacy).
It also involves federal and state wiretap laws. 18 U.S. C. § 2511 et seq., known as the Wiretap Act, criminalizes a range of eavesdropping behavior including e.g. anyone who “intentionally intercepts, endeavors to intercept,” where “intercept” means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device,” or “procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication”.
This rule does not, however, apply where “one of the parties to the communication has given prior consent to such interception.” Assuming that Balaji’s Clubhouse hypothetical above involved a registered user of the app conducting the recording, I shouldn’t think there’s a federal issue here (subject to the discussion on how new apps and methods will interact with existing one-party consent rules, provided near the end of the post). There might also be a CFAA issue if the Clubhouse participant was not authorized to log in to the app; so e.g. Balaji and Felicia are talking, Alice logs in to listen, but it is not Alice but in fact Carol using Alice’s login credentials. Whether this is the case will depend on the outcome in Van Buren v. United States, which was argued before SCOTUS in April.
The question then turns to states. Those who would record a conversation need to be very careful when they do so as the question of whether the recording is lawful will depend on where all the participants are standing. State laws vary considerably on whether surreptitious recording of conversations is allowed.
In Connecticut, for example, my home state and the center of the known universe, the rule reads as follows:
(a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.
Conn. Gen. Stat. § 52-570d (2018)
Breaking this down, in contrast to the federal rule, this rule states that if there is an “oral private telephonic communication,” unless
prior consent of all parties in writing or obtained at the start of the recording; or
it is preceded by a verbal notification (“This call may be monitored and recorded for quality and training purposes.”); or
it is accompanied by loud BEEP every fifteen seconds,
recording the conversation is a civil wrong, subject to a long list of specific exceptions. The aggrieved can sue for damages, costs and attorney’s fees.
But there’s more! Since we know
(a) A person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation.
(b) Eavesdropping is a class D felony.
C.G.S. § 53a-189 (2018)
…we know there’s a crime involved with eavesdropping, too. To understand how the crime is committed we need some definitions. And two sections above Section 189, we find them. “Wiretap” means
the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.
C.G.S. § 53a-187 (2018)
“Mechanical overhearing of a conversation” means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment
“Unlawfully” means not specifically authorized by law.
So if we break that apart:
A person who
unlawfully (i.e. not specifically authorized by law, in particular by invoking any of the exceptions such as prior written consent etc. under C.G.S. § 52-570d)
wiretaps (i.e. overhears OR records communications without the consent of either the sender or the receiver in the conversation)
or mechanically overhears (in the case where someone is not a party to the conversation, without the consent of any party)
commits a felony in the State of Connecticut.
Where does this leave us? Well, you are operating in a federal union of 50 states, a federal district and a number of territories, each of which are governed by different rules. Violating the wiretap laws in any of them is a very bad idea. You don’t know where particular Clubhouse participants are and you don’t have a means of procuring their consent (I’m assuming this as I don’t know how the app works… with an invite I could of course be more specific. *doe eyes*).
California law (which presumably would have been applicable to many of the participants on that call) appears to have a requirement that the communications be “confidential” in order to charge for illegal wiretapping, raising the question of whether, when a new invitee to the room wiretaps the communication, absent any agreement with that invitee that the communication should remain confidential, the communication remains confidential (perhaps not, but speak to a California lawyer – which I am not – if you need advice). This may be able to be resolved with a quick update to the service’s terms and conditions.
In Connecticut’s case, whether you’re invited to the room or not is irrelevant for the civil cause of action. All that matters is that you didn’t avail the safe harbors (consent, verbal notification, or loud beeping noise) or have some other lawful excuse. If a Clubhouse user were spied on in Connecticut without their consent they could sue for damages, attorney’s fees and costs. If you don’t know who did it, file a John Doe lawsuit, hit Clubhouse with a third party subpoena, get the dox of everyone in the room and then work your way through them one by one.
As for the crime, it depends on whether someone who is in the Clubhouse room is considered a “receiver” or “party to the conversation.”
When I first wrote this blog post, which took 90 minutes, it didn’t appear to me that a third party was a “receiver,” but now I’m not so sure. Let’s suppose that Balaji and Felicia are talking to each other on a cell phone, and as such are “sender and receiver” in a particular conversation. If someone who is not participating in the conversation records it, does the eavesdropper fall foul of the rule? In the old world, yes, they do; they are not a sender of information or a recipient of information, and the consent of either sender or receiver is required (one-party) to stay on the right side of the law.
But this is not the old world. So we need to ask whether, simply by dint of being on the app, the third party itself becomes a “receiver” or a participant. If indeed it is found that Felicia and Balaji were having a bilateral conversation and the third party eavesdropper is not a “receiver” or “party” we could be looking at felony charges. In the alternative we could see the third party argue that their mere use of the app meant that they were a “receiver,” simply acting within the scope of their permissions within the app, and therefore capable of granting the required consent to recording. The idea of a telephone call which is open for the world to join is a fairly new one. A review of Connecticut case law (which I don’t propose to conduct at this juncture) would likely let us know which position was the more likely one for a court to take.
There’s also the issue of “mechanical overhearing”, which is distinct from wiretapping but also capable of forming the actus reus of the eavesdropping offense. This could be committed, e.g., if Balaji and Felicia are talking, Alice is a party to the conversation, Alice gets up to go make a pot of coffee, and Carol then surreptitiously turns on a tape recorder in the background. Whether Alice is in fact a party by being a passive listener in the app is, once again, a matter for case law that I don’t propose to dig into at this juncture.
We don’t know enough about how the Vice Clubhouse recording was made to really come down concretely on any of these points. What we know for certain is that a surreptitious recorder has 50 states – and their conflicts of law rules – to worry about. Accordingly someone conducting a surreptitious recording, even from a perch in a one-party consent state, runs the risk of falling foul of some other two party consent state’s rules where the conduct is unambiguously banned no matter what technology is involved. See e.g. the law codes applicable to a Clubhouse user physically present in that commonwealth of the barbarian tribes of the far northern wasteland, Massachusetts:
Except as otherwise specifically provided in this section any person who— willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.
The term ”interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.
Mass. Gen. Laws ch. 272 § 99
These are all matters I wouldn’t want to have to answer for in front of a judge. Doubly so when we’re talking about a judge in Suffolk County.
These laws exist to promote free thought. They punish those who seek to pry into our most private spaces and turn America into a place like East Germany.
So. Don’t record Clubhouse calls unless you have everyone’s prior consent. Preferably in writing.
Or unless Clubhouse creates a “record” feature which makes it blindingly obvious that a conversation is in fact being recorded. Which if they were smart, they won’t do, because it will be a compliance pain in the ass.
Also if anyone has a spare Clubhouse invite lying around there is a contact form on the front page of my website. Holla.