The ethics of preventing third-party net filtering

I haven’t posted anything research-related in a while because I’ve been on a project that I’m not supposed to talk about till it’s done, and it’s not done yet. I can say, though, that it’s about ways to get around country-scale filtration of the Internet. I’m writing it up now, starting with the threat model, as you do:

Alice Arishat wishes to publish things for Brutus to read. Cato does not approve of what Arishat has to say, and seeks to prevent her from publishing anything.

Most online discussion of censorship starts from the premise that Cato is automatically in the wrong here. That’s one of the cypherpunk premises that underpin most discussion of theoretical Internet security. I want to play devil’s advocate today, though, and explore circumstances where we might choose to support Cato. In the offline world, we trade off free speech against all sorts of other values every day:

Cato is a government. Arishat is criticizing its policies.
Core political speech receives consistent, strong protection from US courts, even when large groups wish it didn’t (e.g. flag desecration, neofascist marches).

Cato is a policeman on duty in a public place. Arishat is documenting his actions.
This is also mostly agreed to be protected by the First Amendment, but the police don’t like it and they still try to stop people.

Cato holds the copyright on a Great Work of Literature. Arishat has written a parody, homage, fanfic, or critique with extensive quotations, without Cato’s approval.
US law is broadly sympathetic to Cato; in particular, the DMCA takedown mechanism makes it very easy for him to get Arishat’s works pulled offline. Arishat may be entitled to claim the fair use exception to copyright, and actual court cases in this area tend to be on the side of parodists. However, copyright lawsuits are expensive, and Cato is likely to have a lot more money than Arishat does.

Arishat and Cato’s business partnership fell apart. Arishat is now trying to ruin Cato by publishing lies about him.
This is defamation, a common-law tort; Cato can file a lawsuit and the courts will force Arishat to publish a retraction, take down the original lies, and/or pay damages. But there are a lot of restrictions; most importantly, Cato has to prove that what Arishat said was false (the precise legal standard varies by jurisdiction and whether or not Cato is a public figure), and Arishat can argue that Cato is [abusing the courts to suppress debate of an issue of public concern][]. This kind of lawsuit is not nearly as expensive as copyright lawsuits, and it’s more likely that Arishat and Cato have similar amounts of money. Also, if Arishat posted the lies in a public online forum, Cato can’t sue the forum.

Cato is a private citizen. Arishat has posted embarrassing pictures of him online, and then offered to take them back down—for a fee.
This is blackmail, which is a crime (not just a tort); if the police can be bothered to investigate, Arishat is going to jail.

Cato runs an internet forum devoted to gardening. Arishat is trying to stir up some lulz by posting disturbing cartoon images, categorist jokes, and/or off-topic logorrhea on random threads.
As long as Cato is a private citizen, it is perfectly legal for Cato to delete everything Arishat posts, on sight; this is considered the same as throwing a drunk asshole out of your house party before they ruin it for everyone else. Further, all evidence from the last 20+ years of online fora is that if Cato doesn’t do something to get Arishat to stop, it will become impossible to talk about gardening on his forum. However, in any case that is not perfectly clear-cut, and some that are, Cato is likely to be subject to endless, vicious criticism of his decisions.

When Cato is not a private citizen, his ability to keep the trolls out may be limited lest he use that as an excuse to suppress legitimate arguments. Similarly, US jurisdictions do not agree whether shopping mall owners have to permit people to do anything but shop in their space.

We can also write the threat model from Brutus’s perspective:

Brutus wishes to read things Arishat has published. Cato wishes to prevent Brutus from reading anything he considers inappropriate.

and produce another list of difficult scenarios:

Brutus is a child, Cato is his father.
Most people will agree that most children are not ready to experience the full variety of material that adults are expected to handle. Most people will also agree that no two children are the same and parents are in the best position to judge what their own children are ready for. However, you can make a strong case that Brutus should be taught certain things whether or not Cato approves, such as reading, arithmetic, and the theory of evolution.

Brutus wishes to watch videos of people having sex. Cato thinks that will turn Brutus into a sexual predator.
Cato is wrong; access to pornography appears to reduce the incidence of rape, contra an awful lot of fulmination on the subject.

Brutus wants to know whether Cato’s restaurant is any good. Cato would rather he not find any negative reviews.
We understand where Cato is coming from but we don’t see why we should help, unless the negative reviews are being posted by disgruntled ex-employee Arishat, which may be a case of defamation (see above).

Cato is the present government of a country that engaged in crimes against humanity quite some time ago. They are so ashamed of this that they wish to erase all public legacy of the ruling ideology of the time; therefore they criminalize the use of all its symbols and the sale of related memorabilia.
Again, we understand where Cato is coming from, but we suspect the tactic is counterproductive. Actual instances of this particular Cato all have neo-ideological movements. Note that in at least one case, one such country has tried to make these laws extend to actions committed on foreign soil (but visible to its nationals).

Brutus wants to know whether or not he should vote for Cato in the next election. Cato doesn’t want him to find any news articles about his alleged cocaine habit.
Now we’re back to core political speech.

We have a whole bunch of difficult scenarios here, and deciding which scenario we’re in requires human judgement. A computer (short of a fully fledged human-equivalent AI) cannot, even in principle, tell whether or not the string of bits that Arishat posted online is protected free speech. This is part of why the cypherpunks take the position that Cato is always wrong: that’s a position you can enforce with code. However, I would argue that this is too inflexible and leads to undesirable consequences. Via entirely social means, it is already well-nigh impossible to make something completely disappear once it has been put online, and we can easily find cases where that was a bad thing.

So here’s a proposal: I conjecture that the following statements of principle are an appropriate synthesis of Arishat, Brutus, and Cato’s legitimate interests:

  • Arishat should be able to publish online while concealing her offline identity versus anything short of legal process.
  • Arishat should be able to publish whatever she likes in cyberspace she controls without first getting Cato’s approval.
  • Brutus should be able to access Arishat’s publication space, and Cato should be completely unable to tell whether or not he has done this.
  • Cato should be able to control what appears in his own space, however, if he permits any third-party material to appear, his editing or removal of that material should be subject to audit by the general public.
  • Cato should have some recourse after the fact if Arishat posts something in her own space that is genuinely harmful to his interests, but this should involve a heavyweight, public, transparent process with a disinterested arbiter, such as a lawsuit.