Don't Learn to Stop Worrying

Dread of "Pirate" Sinking ISP Freedom

-- By KaitlinMorrison - 01 Apr 2015

Cases regarding child pornography, pirates, and narcotics, have major implications for the responsibility of site operators and ISPs to regulate content. Ross Ulbricht, allegedly the Dread Pirate Roberts, was recently convicted on seven counts, including narcotics trafficking, for his part in the eBay of online drug sales, Silk Road.

Intro to the Silk Road

Silk Road was a hidden service through Tor. To demystify this for lay readers (which includes most juries), Tor is a type of layered encryption that aids online anonymity. With Tor, information is encrypted in several layers, and routed through many access points as it travels from point A to point B. Each access point only knows the identity of the previous and next points on the path, making it a sort of underground railroad for data. Silk Road is a hidden service, in that it requires that you use Tor to access it, and thus the server has no discoverable IP address.

The Problem with all this Mumbo Jumbo

One issue with this trial is that the Tor browser and hidden services were “mumbo jumbo” to judge and jury. Here is another reason why citizens should be more technically literate in addition to pursuit of knowledge for its own sake: to understand the goings on of the world around us, and to have a real say in what is deemed right and wrong. We cannot simply leave technology to the “experts,” else a primarily white, male, privileged, group of people will be running shit, as usual.

The Silk Road case is an example of a smokescreen behind which our civil liberties are eroded. Much like in child pornography cases, the government brings forth a bad man: the perfect defendant. Dear judge, you wouldn’t want to keep out relevant evidence because it perhaps in some technical way violated the Fourth Amendment rights of a pedophile, right? And dear peanut gallery, do you really want to take a stand for a pervert? Yet, of course, the law for perverts is the law for the people. And changing the standard for accomplice liability when applied to a website designed to facilitate illegal conduct affects all site owners and ISPs.

Keep The Communications Decency Act Decent

The relevant statute, the Communications Decency Act (CDA), has been interpreted to mean that ISPs are not liable for unlawful or defamatory content posted by third parties, even if they have general knowledge that their service might be or is used that way. Specific knowledge is required. Even if the primary use of a technology is illegal, as long as there is a feasible use that is legitimate, the product or service is not per se unlawful. Silk Road hosted third party content and took a commission. Even though people generally use Silk Road to sell drugs, without specific knowledge, only the actual seller should be liable under the CDA, not Silk Road. Here, Ulbricht allegedly had specific knowledge of drug trafficking, and this fact will hopefully salvage the CDA from a potential reimagining on appeal.

If the CDA were to be reinterpreted to mean that general knowledge of the use of a site for illegal activity were enough for the ISP to be liable, this would put the ISP in the position of the dressmaker who sells a dress to a prostitute, and finds him/herself an accomplice. This would incentivize site owners and ISPs to broadly prevent, repress, or censor certain types of users, content, and speech on their services (“we don’t sell dresses to your kind!”). This would obviously have a wide ranging stifling effect on speech online, considering that most places people speak on the internet are not owned by them personally. The threat of prosecution when an illegal product is sold on Amazon or a copyrighted video posted on Youtube would also likely coerce ISPs and site owners to cooperate more with law enforcement by turning over private customer data.

The copyright regime of course has a way of providing ISPs specific knowledge of illegal use of their site: notice and takedown. Once they are given notice, they must take the offending content down within a prescribed period. It is difficult to imagine something similar happening for sites such as the Silk Road, as those filing “notices” would presumably be law enforcement, and those receiving the notices are almost certainly already aware of the conduct so as to render it a farce. But this process would at least serve as a sort of “shots fired” notice to the site operators, and if they do not cease after a fair opportunity to do so, at least specific knowledge can now be imputed to them. This would provide at least a modicum of fairness to accomplice liability.

Don't Stop Worrying

This discussion sidesteps the fact that these websites will persist no matter what the regime. Although Silk Road has unwound, several other sites immediately sprung up in its place. Just as notice and takedown can get a particular video removed, another will spring up soon after. A more comprehensive solution involves reforming our drug and copyright laws, not suppressing potentially valid marketplaces and means of expressing oneself.

In the meantime, we must call for vigor in the way the laws are applied, even to the pirates and the perverts. From the belly of the Trojan horse called and stopping the “bad guys” pours forth an army of bad rulings that will slaughter us all.

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