Cloudflare the Enabler: It Needs To Make Some Hard Choices

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Cloudflare, the Silicon Valley based company that provides online protection for websites against cyber-attacks (among other services) has been in the news–yet again–because they finally fired 8Chan as a client, removing the protective wrapping that had allowed the website so closely associated with hate speech and racist rants to exist on the internet. 8Chan has become the vehicle of choice for the mentally deranged and disaffected social misfits who have perpetrated a number of killings, including the mass murders at a mosque in Christchurch New Zealand and the shooting of mainly Mexican shoppers at a Walmart in El Paso, TX. But this blog is not about 8Chan (which is a topic unto itself), but rather about Cloudflare, its enabler.

Without Cloudflare, 8Chan could not easily exist because it would quickly be subjected to DDOS “distributed denial of service” attacks from internet vigilantes opposed to their message. Cloudflare props up and allows websites like 8Chan, or the right-wing website Daily Stormer (another client that it eventually cut loose) to function. Of course Cloudflare is not the only game in town, and even though they have removed their services from these websites, the offensive content has not disappeared from the internet.

Cloudflare is a new kind of internet intermediary, not a platform but an enabler. But like a platform, the question arises as to what extent it should bear responsibility for the content that it enables, whether this content consists of racist or hate speech sites that appear to encourage violent anti-social acts, such as those that occurred in Christchurch or El Paso, or sites that facilitate or actively engage in copyright-infringing activity. Filmmaker and copyright blogger Ellen Seidler posted a perceptive commentary in January of this year titled, “Piracy’s scofflaws – All roads lead through Cloudflare?”. In the blog post, she pointed out that “illegal piracy sites do their best to hide while Cloudflare helps keep them in business”. Cloudflare is not obliged to provide services to anyone; it does so for profit, not altruistic reasons, and if providing services to hate-mongering racist sites hurts their image or their business, they are fully entitled to terminate services. Their terms of use make that clear, allowing them to terminate users of their network at their sole discretion. But they seem to agonize over the decision to sever their relationship with bad actors, as if to choose not to provide services to undesirable sites that promote illegal behaviour is a form of censorship.

In a blog published to explain its decision to cease doing business with 8Chan, Cloudflare CEO Matthew Prince commented that, “We continue to feel incredibly uncomfortable about playing the role of content arbiter and do not plan to exercise it often.” His commentary continued that Cloudflare’s mission is “to help build a better internet”, and it is not fair to impose upon it the responsibility of deciding which content is good or bad. Oh, the hand-wringing! That is the standard cop-out of the internet intermediaries, platforms or enablers, who like to hide behind freedom of speech arguments to avoid taking action against sites that promote everything from racial hate, murder and terrorism to theft of content and piracy. After all, to do so might damage their business model.

Whether it is the owner of 8Chan claiming that his website is just an “empty piece of paper for writing on”, or Cloudflare providing technical support (until El Paso finally tipped the scales) to keep disreputable websites online, or any of the other internet intermediaries claiming to see, hear and speak no evil, I am tired of hearing the argument from digital businesses that they are mere conduits and that if they made choices, this would undermine democracy. In this myopic world-view, they are supported by the cyber-libertarians of the internet world, the Electronic Frontier Foundation, who argued (with respect to Cloudflare’s decision to end its business relationship with the Daily Stormer) that “we must also recognize that on the Internet, any tactic used now to silence neo-Nazis will soon be used against others, including people whose opinions we agree with.” Protecting free speech cannot be used as the excuse to protect every dark corner of the internet.

But let’s give some due credit to Cloudflare. After the atrocities committed in El Paso, Poway CA, and Christchurch that were promoted through 8Chan, they had every right to decide to discontinue providing services to the website. Unfortunately, they are far less vigorous when it comes to cutting off their services to sites that promote piracy and distribute pirated content, once again hiding behind the “innocent conduit” argument. That argument is becoming threadbare and is increasingly being challenged. Recently in Italy, the Commercial Court of Rome ordered Cloudflare to terminate the accounts of several pirate sites, as well as reveal the personal details of the site owners and their hosting companies, based on a complaint from Italian broadcaster RTI. The plaintiff argued that Cloudflare had knowledge of the infringements perpetrated by its clients and if it failed to take action, it could be held liable, and subject to a fine of Euros1000 per day.

Cloudflare tried to argue that the Italian court did not have jurisdiction since the company was US-based, but the Court was not buying this argument. This is the same argument used by Google to try to fight court rulings in Canada and New Zealand that required it to filter search results. It didn’t work in Canada, while in New Zealand the Minister of Justice is currently considering his options. If you are going to do business in a jurisdiction, be prepared to comply with local law.

Internet enablers have a key role in the digital ecosystem but as private companies (not regulated utilities) they have the right to choose who they work with. If they continue to provide their services to all and sundry, hate sites as well as plain vanilla operations, promoters of piracy as well as fully legitimate sites, it surely says something about that company’s ethics and values. Trying to cloak these decisions in the language of “freedom of the internet” as an excuse to accept any and all revenue is simply trying to duck any responsibility for one’s conscious choices.

Cloudflare finally brought itself to do the right thing regarding 8Chan. One can only hope that one day it will be as ethical when it comes to deciding not to do business with content pirates and scammers.

© Hugh Stephens, 2019. All Rights Reserved.

Google is Monetizing Human Tragedy: Why Aren’t They Held Accountable?

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My wife and I had just been visiting our daughter in her new home when we turned on the car radio. It was an interview on CBC with Andy Parker, whose daughter Alison had been murdered, live on TV, by a deranged former employee, back in 2015. The killer recorded and later uploaded video of Alison Parker’s death to the internet, in addition to the live broadcast of the tragedy. The radio story was about the trials of a father who was being trolled by hate-mongers and conspiracy theorists, and about his ongoing efforts to get the videos of his daughter’s murder taken down by YouTube. My heart went out to him. I understood what was driving him, what helps him get up each morning. It is to give some meaning to his daughter’s death by trying to make the world a slightly better place. And one of those things, in addition to better gun control, is to try to bring Google, owner of YouTube, to account for its actions, or rather, its non-action. Continue reading “Google is Monetizing Human Tragedy: Why Aren’t They Held Accountable?”

Polling Data and Copyright: Who Will Win the Next Election?

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Who will win the next election? That is the $64, $64 thousand or $64 billion question (depending on which generation you represent), and is the question on which political pollsters like to think they provide some insights. Which election are we talking about? If you are American, it is clearly the 2020 Presidential election, but if you live in Canada, it is probably the general election on October 21 of this year. If you are British, we’d be talking about the election that Boris Johnson may call to sort out the Brexit mess, and if you are Australian you might be thinking about the most recent election where, once again, the actual results confounded the pollsters. In fact, when it comes to political polling and the “next election”, we could be talking about any country where public opinion actually counts (i.e. not China) and where reading the pulse of the electorate is part of the political process. Not that pollsters get it right most of the time these days. Continue reading “Polling Data and Copyright: Who Will Win the Next Election?”

The Art in the Ravine—Can I Legally Post this Photo?

Photo: Author

This story starts with an abandoned rail line in the ravine behind my townhouse in Toronto, which I enjoy walking along with my six year old grand-daughter who thinks of it as her “secret railway”. It is very overgrown and hasn’t been used for years, but has an interesting history. Originally incorporated as the Ontario and Quebec Railway in 1881, until recently it still existed as a legal entity even though the company was absorbed by the CPR many years ago. Continue reading “The Art in the Ravine—Can I Legally Post this Photo?”

Google‘s “Stoush” with New Zealand: Who Will Prevail?

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Why is it that every time I write about Google, they have done something else to antagonize national governments? Once again they are in hot water in New Zealand, owing to Google’s proclivity to thumb its nose at small nations (and sometimes quite big nations) because, well, they’re Google and they’re big, and they’re everywhere. This time, as reported in the New Zealand media, Google violated a publication ban imposed in a high-profile murder case by circulating a British news story that identified the accused, showing his picture, and highlighting it all in a “what’s trending New Zealand” email to subscribers (a number of whom were in New Zealand). The NZ publication ban was imposed so as not to impair the accused’s right to a fair trial because of media reports that might influence a jury. Continue reading “Google‘s “Stoush” with New Zealand: Who Will Prevail?”

Canadian Copyright Review: The Case of Indigenous Culture

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As it prepares to take on the task of bringing forth amendments to Canada’s copyright legislation, the Canadian government will be digesting and assessing two recent Parliamentary reports dealing with copyright issues, Shifting Paradigms, the report of the Standing Committee on Canadian Heritage and the INDU Committee Report, the report of the Standing Committee on Industry, Science and Technology. The two reports came out within a couple of weeks of each other, and both put forward a number of recommendations, some of which were mutually inconsistent. The copyright community generally applauded Shifting Paradigms and while there were elements it supported in the INDU Committee Report, it is fair to say that it was less than enthusiastic about some of the latter’s recommendations, as I discussed in an earlier blog. However one area where both Committees shared the same wavelength was with respect to indigenous culture and the impact that copyright can have on native artists and traditional indigenous expression. Continue reading “Canadian Copyright Review: The Case of Indigenous Culture”

“Mural, Mural on the Wall: Who’s the Owner of Them All?”

(c) Michelle Loughery, 2007. By permission of the artist.

For a small town in British Columbia, it’s a tale of high drama and threatened lawsuits. Merritt, BC, population about 7000, is a small ranching, sawmill and tourist town situated in the Nicola Valley in the interior of the province, a 3 hour drive from Vancouver. I passed a university summer of my misspent youth there, working in the big open-pit copper mine (Craigmont) that used to be one of the mainstays of the economy. The mine is long closed and now the good citizens of Merritt use various techniques to attract visitors, such as holding an annual country music festival, (which in some years increases the population of the town some twentyfold), hosting the Canadian Country Music Hall of Fame and displaying a number of creative murals that grace various buildings around town, all tied to the country music theme. It’s a rollicking little town that has become caught up in the crossfire of a copyright controversy. Continue reading ““Mural, Mural on the Wall: Who’s the Owner of Them All?””