The Free Net Project: a brief proposal

One of my hobbies is that I am a libertarian. Not just any libertarian, but a particular brand of libertarian – a free stater, or part of the Free State Project in New Hampshire.

The Free State Project was created by a Yale academic, Jason Sorens, back in 2012 with a simple premise: if one could assemble enough politically active people with a common, minority belief system – in this case, libertarians – and concentrate them in a small area, one could achieve meaningful political change that would be impossible through a traditional, nationwide strategy due to the predominance of the two-party system.

The Free State Project’s logo. The critter is a porcupine, the official animal of libertarianism.

The project selected New Hampshire as its target state. The Project set up a website which allowed people – of which I am one – to pledge that they would move to New Hampshire within five years of 20,000 people signing the pledge. In 2016, the threshold was met and the timer started.

Thousands of people have moved during that time. As to the results, well, it’s been pretty successful:

The Executive Branch is actively seeking to censor the viewpoints of American citizens

Today we learned that the Democrat administration is actively colluding with Facebook and other major technology companies to censor American internet users.

Responses from conservatives, moderates and libertarians alike have mainly consisted of calls to regulate Big Tech so that this sort of interference can’t happen, or some other kind of Beltway-compliant political resolution.

For an ordinary Internet user, taking on Big Government and Big Tech on their own terms, via their institutions and in accordance with their rules means the deck is stacked against you. You will certainly fail.

For example:

  • The government is now actively involved in censoring dissident viewpoints in the United States. If you give the government the power to regulate speech online – as many proposals call for – the government will use this power against any viewpoint which challenges the ruling class.
  • Facebook and Twitter are private property. Giving the power to the government to force them to host their philosophical opponents’ speech will necessarily involve giving government power to force us to host our philosophical opponents’ speech.
  • Even if we could secure passage of a law forcing social media companies to grant minority viewpoints equal access (and to be clear, I don’t think that outcome (a) is possible for at least four years, during which time many elections will be swayed by Big Tech’s influence, or (b) constitutionally permissible thereafter), such a rule would likely be limited in its effect, and enforcement would entail years of expensive litigation. Big Tech can afford legal fees. You cannot.
  • Censorship problems are not limited to social media. PayPal, Amazon, Uber, numerous banks, credit card companies and payment processors also engage in politically motivated censorship and/or denial of service which is not connected with terms of service violations. We need to address this, too.

Your arms are not long enough to box with God. You cannot beat the regime at its own game.

But what if we stopped playing the game entirely?

“There’s nothing more blue-pilled than thinking there is a path to liberty that isn’t physical concentration or a form of exit”

That line is from Jeremy Kauffman, of the LPNH and the Free State Project. The Free Staters have met with a considerable amount of political success using this formula. We may wish to try it ourselves.

The Free State Project recognizes that in order to achieve political change at scale as a minority, the effectiveness of one’s resources must be maximized to the fullest possible extent. This is achieved by removing your members from regions where their votes are and will always be ineffective and placing them in localities where their votes have an effect.

So it is online. The issue is that at the moment there is not a definite, pro-freedom ecosystem in place – a group of businesses which pledge their fealty to libertarian ideas much as corporate America seems to lately pledge its fealty to post-Marxist ones – where freedom-loving people can go and know, as a matter of certainty, that as long as they don’t break the law, their access to a full range of financial and network infrastructure is guaranteed, regardless of their political viewpoints.

An equally significant problem is that there is no coordination. Because Big Tech essentially controls the entire information space unchallenged, it is in a good position to prevent competitors from proliferating (app store bans) and keeping existing influencers reliant on its ecosystem for the engagement which is responsible for their income. Big Tech has scale; its users do not.

The problem is one which requires scale. Even if we could “fix” Twitter and Facebook, political censorship affects far more than just these two companies.

What is required in order to fully defeat the merger of state and corporate power represented by today’s announcement by the Biden Administration is a root-and-branch replacement of practically every business essential to American life.

A central aim of the project is to attract censorship resistant service providers. It will do this by verifying businesses’ ideological alignment to the aims of the Project, and directing Project members to those businesses. As the number of Project signatories increases, this will demonstrate to potential first-movers in each of these fields (to the extent that these businesses do not currently exist) that, if they pledge their loyalty to political neutrality and refuse to engage in state-suggested, but not legally mandated (thanks, First Amendment!) censorship, they will acquire millions of users overnight.

The Project should identify businesses in key sectors as targets for the migration and provide information about these businesses to prospective movers. Strategic categories of business should include:

  • Retail banking.
  • Acquiring banks for merchant credit card accounts.
  • Credit card rails.
  • Payment gateways and apps.
  • Cryptocurrency exchanges and fiat on/offramps.
  • Online video.
  • ISPs.
  • Mobile telephony.
  • Microblogging.
  • Social audio.
  • E-mail.
  • Hosting and DNS hosting.
  • Ridesharing.
  • Etc.

For each of these categories we will not need the entire marketplace to be pro-freedom to circumvent informal censorship. We just need a handful of companies in each category, who Project members could turn into instant category leaders.

The Free Net Project registry and pledge

The Free Net Project would look a lot like the Free State Project, but with a difference: instead of a mass migration across lines on a map, this would be a mass migration away from Big Tech. People would sign a pledge that upon a predetermined number of signatures being obtained, say 10 million, signatories of the pledge would, on or around the same date and time, delete their Big Tech accounts and solely do business with pro-freedom businesses.

The pledge would be modeled after that of the Free State Project and would read something like this:

  1. I pledge my solemn intent to only use the services of pro-freedom businesses with the Free Net Project.
  2. I pledge my solemn intent to cease using the services of companies which are complicit in the systematic censorship of law abiding people.
  3. I will work towards the creation of a society in which the maximum role of government is the protection of the individual rights to life, liberty, and property.

The project would maintain a registry of pro-freedom businesses and decentralized protocol systems, and links to their signup pages or download portals.

The principal objective of this exercise is to prove the naysayers wrong and show that a withdrawal from Big Tech is feasible:

  • Any business signing the pledge would be able to see how big their potential pool of customers would be. As that pool grew larger, so would there be a greater incentive for businesses to make the pledge, including existing businesses which may not have a pro-freedom ethos but want to get their hands on libertarian dollars.
  • For online influencers, as the number of signatories rises, they will acquire greater certainty that their influence will also survive the move. Applications could be built which could show Twitter and Facebook users how many of their followers have decided to make the pledge.
  • As numbers approach the 10 million target, naysayers who say it is impossible to make the move, and those calling for government regulation, will be silenced as it becomes apparent that a legal but non-legislative and non-litigious solution is the more viable approach.

And that’s that. Beating “Big Tech” doesn’t require us to get every person in the world, or even in the United States, to quit. It only requires a critical mass of the most interesting people and of ordinary users.

The Internet gives us all the ability to, at the click of a button, withdraw our business and our money from any business we choose. It also gives us the ability to advertise to entrepreneurs who would provide services on a nonpartisan basis that there are millions of us willing to bring about their success with our wallets. There is no law which says we cannot coordinate our activities to only give our business to businesses which share our politics. All we need is for that coordination to take place.

We’re never going to get Big Tech to change. Its value system, derived from the West Coast liberals who created it, is too entrenched. It’s high time that we stopped begging the government to save us and saved ourselves instead.

To that end,  to quote FSP founder Jason Sorens, “I’m hoping this project really becomes a decentralized affair – I don’t want to be a dictator of my own little club, and I don’t want your money.” If you’re the right person to run with this proposal, then by all means, run with it.

Postscript:

Thoughts on the Trump Deplatforming

See also: Open Access Publishing Platforms and Unlawful Threats, Republicans need to stop begging the government to protect them from internet censorship

Today Donald John Trump, the 45th and current President of the United States, was banned from Twitter on the grounds that the account presented a “risk of further incitement of violence.”

I offer no opinion as to POTUS’ speech. Calls to or encouragement of violence on Twitter are nothing new. Leaders and nations (and leaders of nations) call for violence on Twitter all the time, whether in the context of Ayatollah Khameni referring to the State of Israel as a “cancerous tumor…. that has to be… eradicated” or the Chinese government engaging in genocide denialism.

This tweet was subsequently deleted.

Closer to home, ordinary people everywhere across the political spectrum, when given a keyboard and an Internet connection, routinely prove capable of being utterly horrible.

This summer, when in fact people were burning rather a lot of things down, rather a lot of comments on Twitter called for various individuals to “burn” [various things, usually “it”] “down.” Indeed Twitter continues to platform an author of a book titled “In Defense of Rioting,” published during the peak of the 2020 summer riots which killed 25, shut down dozens of American cities and incurred billions of dollars in damage.

On the right people were no better, advocating the use of extreme force in extreme language. See e.g. Florida Rep. Matt Gaetz calling for American citizens to be “[hunted down] like we do those in the Middle East”:

Mind you, much of what the United States does in the Middle East these days is extrajudicial murder, particularly when we do it either directly with a drone strike, but also through our provision of precision-guided weaponry to local client states. Given the example our government sets in dispatching its enemies it is perhaps not so unsurprising that after even the most cursory search one can find a great many calls on ye internet for extrajudicial murder to be committed against our neighbors right here at home.

This stuff isn’t on some fringe platform like 4Chan, it’s on Twitter. And it’s not hard to find. Millions of Americans are cooped up in their houses calling for, or reading other people’s calls for, millions of other Americans to be dragged out and shot in broad daylight.

This is unhealthy. Hearing these things on television, in the classroom or the workplace would be unthinkable. Reading them online is routine. That these views are widely held is borne out by research: polling shows that the political right and left are both increasingly tolerant of the use of unlawful force to accomplish their political objectives.

Whatever this is, it pre-dates COVID-19; The Proud Boys (right wing) and Antifa (left wing) street gangs were mixing it up in American cities like Portland all year round, and the latest incident in D.C. is really a larger and more dramatic instance of street violence which has happened in D.C. for the past few weeks and the U.S. over the past several years.

As a libertarian, this troubles me. Last time I looked, we don’t execute people for rioting. (In many states the government doesn’t deliberately execute anyone at all, for any reason.) Kent State is rightly remembered as an atrocity because it was an atrocity, much like the Boston Massacre and Tiananmen Square were atrocities. If a line of policemen gunned down dozens of BLM supporters in Lafayette Square when the White House was first beseiged in June, that would have been an atrocity. So too would it have been if the Capitol Police gunned down the yahoos who stormed the Capitol building this week.

It is a sad commentary on our current state of affairs that we cannot agree that atrocities are bad in every case, even where philosophical opponents are concerned. It is a testament to the strength of our system, not a sign of weakness, that police allow public places to sometimes be overrun and that we then allow our constitutional guarantees of due process and a fair hearing to mete out justice in the aftermath. This indeed is happening now – as of this writing, 54 individuals have been arrested and if I had to guess hundreds more will be before the US Attorney is done handing out indictments.

Running a social media company is not easy. It is hard for the human mind to appreciate the difficulty for any organization to keep on top of a flow of speech being pumped out to the tune of five to ten thousand posts per second, as is the case on Twitter. Twitter’s moderation therefore kicks in after the fact: posts go up, and are later reviewed, and if found wanting, they come down. American law works much the same way; we do not impose so-called prior restraints on speech by subjecting speech to pre-approval or licensing, but rather we permit the speaker to make the decision as to what he or she wishes to say, subject to the condition that if the speech falls within one of a definite set of criminal or tortious categories, such as threatening, libel, conspiracy, or direct incitement, a penalty might be imposed.

The vast majority of data produced, and therefore speech produced, in the present day is online. In the context of COVID-19 virtually all speech of political importance is made online. The First Amendment protects that speech from interference from the state. It does not protect that speech from interference from private parties, including but not limited to the platforms who host it.

Most social media companies claim to be viewpoint-neutral and have policies which are ostensibly viewpoint neutral in order to attract the widest possible audiences to their platform. Long has it been alleged by American conservatives that these platforms are biased against them.

Long has it been alleged by American liberals that the conservatives’ allegations are untrue. We can confidently say that the banning of President Trump by most of the major players, paired with the continued tolerance of literal genocidaires from abroad, shows the conservative complaint is correct. Moderation policies are a smokescreen for political reality, which is that social media platforms were content to be more or less neutral when they were racking up KPIs in the run up to an IPO, but in the wake of mainstream commercial success they have become more (commercially) conservative to reflect the politics of their owner-operators, regulators, and advertisers. They cannot say this out loud without alienating vast swathes of their users, so they let the implementation of their policies say it for them tacitly.

In the United States, there is no legal problem here. Advocacy of the use of force or support for the use of force, without more, is protected by the First Amendment of the U.S. Constitution (see: Brandenburg v. Ohio); the type of speech we criminalize is specific, such as that which furthers an attempt, agrees a conspiracy, or is directed towards the production of imminent lawless action.

I do not think it is appropriate to describe what is happening to President Trump as de-platforming. He is a platform unto himself. Nor do I think that de-platforming people who are out of step with a platform’s own political consensus is a bad thing. For sure, a deplatforming has nothing to do with freedom of speech. Freedom of speech is a shield against state action.

Wherever the President might go, he will bring millions of users with him. This might be a good thing. Many of my closer friends, personal and on the Internet, are growing increasingly concerned that America is in an escalatory spiral of political violence. For this social media is being blamed.

If indeed this is true, the highest priority for our government and our corporations should not be scoring partisan political points or controlling the battlespace (which they are doing). It should be de-escalation (which they are not doing).

Twitter is not a neighborhood, its terms of service are not laws, its content moderators are not policemen, and its CEO is not a head of state. Yet it is the place many of us gather, a town square without grass, a coffee shop without tables, a park without benches, where we have conversations in public where not just anyone nearby, but anyone in the world can inadvertently stumble upon our words and object.

The result is that everyone is constantly strung out and fighting, surrounded by enemies real or imagined. Jack and Zuck built platforms that connected the world, but at the same time forced everyone to deal with people whose opinions they loathe and on terms they resent. Current proposed reforms to Section 230 of the Communications Decency Act would ossify this miserable state of affairs in law.

Our constitutional system was not designed to accommodate millions of belligerents constantly screaming at each other at the speed of light, as social media does now. Hoping to completely silence our philosophical opponents’ viewpoints is a fool’s errand; apart from being morally wrong and illegal, it is technically impossible, as the ability to spin up a server is the ability to host an online forum. Perhaps it is no bad thing if we embark on experiments to structure the Internet in such a way that unlike-minded people are kept further apart.

After the STABLE Act, Coin Center’s blockchain node safe harbor is worth revisiting

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.
Gratuitous bitcoin-motherboard clip art. Licensed under the Pixabay licence
  • 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.

Summon the Libertarians!

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”

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.

By @owenbroadcast

Libertarians have been complaining about all of this for years. Libertarians complained when, after 9/11, strip searches were introduced in airports and warrantless wiretaps were conducted on American citizens. Libertarians complained about going to war in Iraq and Afghanistan. Libertarians continue to complain about the militarization of our police. Libertarians complained when the military started bringing home military hardware like MRAPs and Humvees and sold them to our police. Libertarians complained when gun control laws were passed that meant that police could possess M4s and AR-15s and citizens could not. Libertarians complained about drug legalization and mass incarceration. And so on.

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:

Attorney Hutz to the rescue

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 violence the 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.

You really shouldn’t record Clubhouse calls

Somewhat distressingly, this is the second blog post I’ve written on a legal topic following a call for same from the inimitable Balaji Srinivasan.

It’s not legal advice. See disclaimer.

My last post was on the topic of how to introduce anti-cancellation language into an employment agreement. This blog post will be on the subject of privacy, prompted by this tweet from Balaji:

“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)

And also

“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

Id.

and

“Unlawfully” means not specifically authorized by law.

Id.

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.

Another type of wiretap. Image licensed under the Pixabay license.