Did America just lose Afghanistan because of WhatsApp?

In the middle of a conflict, good analysis is hard to come by. Because adversaries do not telegraph their plans to one another, plans depend greatly on the fact patterns surrounding their execution, and no human mind can possibly observe, much less comprehend, the movements of all players on the battlefield, the course of a war, no matter how meticulously planned and no matter how eminently credentialed the planners, frequently defies the plan.

This phenomenon is known as the “Fog of War,” a phrase which originated with Prussian military theorist Carl von Clausewitz in his magnum opus, On War:

War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty. A sensitive and discriminating judgment is called for; a skilled intelligence to scent out the truth.

Such intelligence is evidently completely lacking in the U.S. political, military, diplomatic, and “intelligence” apparatuses. A little over a month ago, President Biden – presumably echoing the advice he was getting from the permanent bureaucracy – said the following:

How wrong this assessment was is now clear for everyone to see. A week ago, the U.S. said Afghanistan could withstand the Taliban for 90 days. Today, the (70,000-strong) Taliban is in control of the capital, the much-vaunted Afghan army has disintegrated, and tens of thousands of Afghans – whose collective force could stop the Taliban, if only it had the organization to do so – are fleeing to any place and by any means they can.

Conventionally, the United States did everything right; it installed a government, equipped and trained an army with four times the Taliban’s manpower, an air force, and top of the line American military materiel, and even now is apparently flying sorties against Taliban targets. Yet everywhere the Taliban is in control, and they did so, in many places, apparently without firing a shot.

So what the hell happened?

I’m a tech guy, not a military guy. And in terms of the kind of tech I’m into it’s that weird decentralized crypto tech like Bitcoin, not SaaS.

I do know enough about the war to know that when the Taliban went toe to toe with American and NATO soldiers, the Taliban got its ass kicked basically every single time. No air force, no navy, and no artillery meant that whenever the Taliban revealed themselves on the battlefield they were guaranteed to be cut to pieces by various pieces of intimidating American hardware like A-10 Warthogs or .50-caliber rifles.

It appears the Taliban tried something different this time around. Open source reporting shows that rather than rocking up and going toe to toe with the Afghan national army, they appear to have simply called everyone in the entire country, instead, told them they were in control, and began assuming the functions of government as they went:

See this from 2018:

Or this from June:

Or this from today:

The fact that WhatsApp is so good that it beats any homegrown communications alternative is not new or unknown. This story in the New York Times in 2019 discussed the use of the app by both groups of belligerents in detail:

WhatsApp has unique benefits in the fight against the Taliban, who also rely on the app to update their superiors and check in with their fighters. The battle has become a war of small, quick tactical gains — a district here, a village there — and for this, the advantages of the app, they say, far outweigh the potential vulnerability.

Mainly, it’s quick and flexible. Urgent decisions on an imminent attack no longer must wait for ministers and commanders to get to a secure operation center. WhatsApp groups have become virtual operation centers, with ministers and commanders sending decisions from their bedroom, in between meetings or even from an airport lounge.

What I think has not been considered enough is the degree to which WhatsApp DMs were a strategic blind spot for the United States.

The Fog of War obviously makes it impossible to know what’s happening on the ground, right now, in Afghanistan, even for observers from the military and the D.C. political apparatus who do this for a living. Recalling, however, that the U.S.’ longtime strategy for crippling an opponent begins with decapitation strikes on radar and communications infrastructure, it is fairly obvious to anyone that as far as the Taliban were concerned, this never took place. The Taliban is setting up a government fairly expeditiously. Its propaganda circulates on Twitter in plain view.

The Taliban are thus free, and have been free for a number of years, to take their fight not to American soldiers (where they always lose) but directly to the hearts and minds of the Afghan people, all using free-to-use American internet infrastructure like Facebook and Twitter (where they have now won).

WhatsApp is an American product. It can be switched off by its parent, Facebook, Inc, at any time and for any reason. The fact that the Taliban were able to use it at all, quite apart from the fact that they continue to use it to coordinate their activities even now as American citizens’ lives are imperiled by the Taliban advance which is being coordinated on that app, suggests that U.S. military intelligence never bothered to monitor Taliban numbers and never bothered to ask Facebook to ban them.

They probably still haven’t even asked Facebook to do this, judging from the fact that the Taliban continues to use the app with impunity.

This might explain why Afghanistan collapsed as quickly as it did.

The Afghan government was built, by the Americans, in the style of a late 20th-century, western, neoliberal state with a credulous and compliant electorate, able to effectively convey its messaging to its people via press conferences, carefully-tailored public statements, and newspaper articles. See e.g. the below:

Cringey, exceptionalist, Beltway langue de bois is hackneyed and even in the United States is widely disbelieved, as it has been ever since Nixon. This is the case whether it be Nancy Pelosi tut-tutting a conquering army or the State Department extolling the merits of American-style democracy.

It is especially rancid when it emanates from the permanent bureaucracy that runs the Executive Branch.

Culturally speaking, the U.S.’ messaging in the region is rather out of step with what we know about Afghanistan specifically, and the Middle East more generally, and is likely ineffective and unpersuasive communication to most Middle Eastern listeners.

There are numerous such examples of milquetoast, tone-deaf messaging directed towards Afghanistan in the run-up to this calamity. Scroll down the US Embassy’s Twitter feed for more examples. The U.S. was trying to convince the Afghan people of the omnipotence of American power through the use of language better suited to talking to a C student from Barnard at a career fair.

The United States thought it was fighting an army. I suspect the reason we lost is because we were fighting a meme.

The Taliban is a decentralized, insurgent force. In many cases they live where they fight. They know the soldiers on the other side. And they have spent years engaged in a public dialogue with each individual Afghan on cell phones using messaging apps. They appear to have leveraged this dialogue to attempt to convince every Afghan before fighting even started that despite having a fighting force on par with the NYPD, they would have the ability to take on a fighting force twice the size of the British Army. They have been DMing soldiers for months inviting them to individually surrender. When they arrived in the cities they accepted those surrenders. After the surrenders they quickly pivoted to assume the roles and responsibilities of government.

Two decades of getting annihilated by U.S. infantrymen showed the Taliban that asymmetric application of force could not overcome American power. So instead of going after the boots, they went after the suits, betting that asymmetric application of tailored persuasion and propaganda could overcome weak, “woke,” politically correct American propaganda.

And it did.

As a result, the Taliban took Afghanistan with almost no formal resistance. I suspect this is because they convinced everyone they would win before they showed up.

Imagine if the U.S. were in the throes of state failure and you received a personalized message from your local Antifa/Proud Boy/[insert_boogeyman_here] branch, right on your cell phone, explaining there would be a nationwide offensive, following which your boogeyman of choice – backed by millions of supporters – would install a totalitarian regime. Imagine they offered you the chance to surrender ahead of time. Then, one day, the proposed offensive happens, with boogeymen Zerg rushing the state everywhere at once; how would you feel?

What would you do if your leadership showed even the slightest weakness in the face of this assault, their public statements limited to sophomoric platitudes about pluralism? Would you surrender? Would you run? Would you fight?

Most people I know would surrender or run. This may explain why Afghan divisions cut bait, and thousands of people in Kabul who could pick up rifles and fight, and if they chose to do so would present a substantial obstacle to the Taliban closing in on the city, didn’t, choosing to flee instead.

Whether the Taliban can hold all of the territory it has just taken is a very different matter. If indeed U.S. intelligence is correct, then their 70,000 men have rather a lot of territory to manage. There is no reason, however, to permit further use of any encrypted American communications technology, app stores, and devices by the terror state for at least as long as American citizens are in jeopardy.

There can and should be recriminations for what happened here. It is not solely the Biden Administration’s fault; the military should have been considering how to decapitate Taliban communications for years, which it clearly has not done. The fact that the Taliban is using US-based servers to run its terror state and nobody in the Biden Administration has thought to disconnect it, even as U.S. forces retreat in disarray, is a strategic blunder on par with Pearl Harbor.

In terms of our collective future, we should expect the government to push for more surveillance and control over internet communications, with governments closing off websites and ports or effectuating internet blackouts in crises real, imagined or feigned. It’s a dark future, and one which I hope decentralized technology will be able to circumvent and defeat.

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.