5 ms·

Their Github Pages page was censored. They are unable to participate in the maintenance of an open source repository. This was done, according to Github, as a

by jMyles 7y ago

Their Github Pages page was censored. They are unable to participate in the maintenance of an open source repository. This was done, according to Github, as a requirement to comply with the laws of its state. If that's not a free speech issue, there are no free speech issues.

elliekelly 7y ago
It was done as a requirement to comply with the laws of the United States[1] and insisting it's a free speech issue does not make it so. The United States government has no obligation to care about the collateral silencing of non-citizen speech in a foreign country subject to economic sanctions. The government also has a mechanism where someone inadvertently impacted by sanctions can appeal to the Treasury Department and be granted an OFAC "license" that gives them permission to operate outside of the sanction(s). If the goal is to silence those who are subject to the sanctions that would be an odd way to do it. [1] https://www.law.cornell.edu/cfr/text/31/part-589 https://www.law.cornell.edu/cfr/text/31/part-589
- jMyles 7y ago
  > The United States government has no obligation to care about the collateral silencing of non-citizen speech in a foreign country subject to economic sanctions. Although it may not have a legal obligation under the current menu of precedents, I disagree that it has no obligation tout court. The real facts on the ground here are that a person's website was censored at the behest of the US Government. This is chilled speech. That the target happens not to be a US National, and also a national of a nation under sanction by the US government does not put it outside the realm of speech.
  - smsm42 7y ago
    Not every issue where speech is limited is an issue of free speech. If you're told that you can not write on my house's wall, it's about speech, but not issue of free speech because it's my house and I decide who writes on it. If a mafia boss is imprisoned for ordering a contract murder, it's not issue of free speech, because even though the order was spoken, the murder is the crime that is punished, not speech. If you are not allowed to talk in the movie theater while movie is screening, it is not an issue of free speech - it's the issue of it being not the right place to speak. If there's a trade embargo that prohibits providing services to nationals of Elbonia and an Elbonian can't publish her speech - it's not the issue of free speech because the issue here is the embargo, not the speech. Having "speech" somewhere in the picture does not automatically makes it an issue of free speech. The same speech would be easily published if produced by anybody else. There's no issue with the content of the speech.
- sneak 7y ago
  Human rights to free association and free expression have nothing to do with citizenship. > The United States government has no obligation to care about the collateral silencing of non-citizen speech in a foreign country subject to economic sanctions. You have inverted the “care about”: if they simply did not care, it would be fine, as they wouldn’t be interfering with anyone’s rights. However, they are caring quite a lot, in the sense that they are willing to use violence to enforce these prohibitions.
- wahern 7y ago
  I agree people lean too heavily on Free Speech when criticizing the government, but there's actually a long running debate going back decades regarding the extent to which OFAC specifically and the U.S. government's sanctions regime generally can restrict various communication and publication platforms and activities. Just a few months ago I think there was a story on HN about the IEEE tweaking their participation rules, and IIRC their lawyers were pushing back on the OFAC. Here's a 2012 law review article (which I haven't read, yet), "Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations", https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3452&context=wmlr https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3... Arguably, Microsoft and Github are simply choosing to participate more strictly than what is legally required--including what's constitutionally permissible for OFAC to enforce. And of course that's the problem with these large, centralized, free services. They can kick people off whenever they want whether it was legally required by law or not, and they will because they're going to be very risk averse in situations where they're not directly deriving revenue. There are many other areas where corporations, in the pursuit of profits, play fast & loose with the law in the face of far greater potential fines and liability.
fkdo 7y ago
Does the first amendment apply to none us citizens/residents?
- jMyles 7y ago
  At a high level, the answer is something like "yes" - people who are not US Nationals who engage in protected speech in a region subject to police power of the United States have essentially the same protections as citizens or permanent residents. At a lower level, the answer gets close to "no" - I suspect that, in cases like this, something in the ballpark of Kleindienst v. Mandel will be controlling in the eyes of SCOTUS, so no. But even if this particular matter is not specifically regarded as protected speech under the 1st amendment by US Courts, it is still a free speech issue in general terms. This person's basic human right of expression has been abridged by the act of a foreign state and a spineless and compliant corporation.
- kragen 7y ago
  Yes, but this is sort of the wrong question — the fact that the USSR did not have a First Amendment did not make their official censorship ethically correct.
smsm42 7y ago
You confuse trade war with censorship. I'll explain the difference. Censorship is based on content: if you can say "long live Communist Party" but can't say "long live Republican Party", that's censorship. Trade war is based on origin: if you are not allowed to do trade (business) or provide services to residents of certain place, regardless of the content or purpose, that's embargo. > If that's not a free speech issue, there are no free speech issues. There are plenty, when exclusion is based on the content. This is not one of them. That's why filing a First Amendment lawsuit against trade embargo wouldn't do you any good.
- jMyles 7y ago
  > You confuse trade war with censorship. Indeed, but it's not for lack of trying. > exclusion is based on the content The pretext the speech falls short of inclusion in the category of "protected speech" because a different common thread can be drawn across its particulars is simply not convincing. Censoring speech in the basis of nationality instead of content doesn't making the underlying expression any less censored.
- pyrale 7y ago
  > Censorship is based on content: if you can say "long live Communist Party" but can't say "long live Republican Party", that's censorship. Using that definition, censoring all publications of a given group (say, black people) would not be censorship. That's a big hole in the definition.
  - habnds 7y ago
    discriminating on the basis of race is banned separately. This would probably be addressed by the equal protection clause of the 14th amendment, not free speech under the first.
  - smsm42 7y ago
    > Using that definition, censoring all publications of a given group (say, black people) would not be censorship It's not censorship, it's discrimination. Bad thing, but different. If it was censored because these people write about specific racial issues, it'd be censorship. If it's blanket denial regardless of the content, it's racial discrimination, not censorship. It doesn't mean it's not bad - one could argue it's even worse since it doesn't leave you any chance - you could probably talk in another way to route around censorship but you can't stop being black - but it's not that issue, it's a different one.
ryanmercer 7y ago
>Their Github Pages page was censored. They are unable to participate in the maintenance of an open source repository. This was done, according to Github, as a requirement to comply with the laws of its state. Software export is restricted to varying degrees, mostly encryption but there are other circumstances where export control exists on software (they used to be far more severe but have become considerably reduced). The BIS - https://www.bis.doc.gov https://www.bis.doc.gov - handles this and other CCL items. Here is the relevant CFR https://www.govinfo.gov/app/details/CFR-2012-title15-vol2/CFR-2012-title15-vol2-subtitleB-chapVII-subchapC https://www.govinfo.gov/app/details/CFR-2012-title15-vol2/CF... To export anything that contains encryption over 64 bits you have to register with the BIS and be reviewed before you export. Even open-source software requires that you notify the BIS. Other countries have similar export/import controls, see https://en.wikipedia.org/wiki/Wassenaar_Arrangement https://en.wikipedia.org/wiki/Wassenaar_Arrangement See also: https://www.bis.doc.gov/index.php/policy-guidance/encryption https://www.bis.doc.gov/index.php/policy-guidance/encryption https://en.wikipedia.org/wiki/Bureau_of_Industry_and_Security https://en.wikipedia.org/wiki/Bureau_of_Industry_and_Securit... https://en.wikipedia.org/wiki/Export_Administration_Regulations#Export-controlled_items https://en.wikipedia.org/wiki/Export_Administration_Regulati... https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States https://en.wikipedia.org/wiki/Export_of_cryptography_from_th...
wil421 7y ago
Free speech applies to the US. Last time I checked Crimea was in Russia. US companies have to follow US law. I worked for a company that was fined because they still had employees working in Syria when the war started.
- helge9210 7y ago
  It's not in Russia. It's in Ukraine under Russian occupation. This is the reason for embargo.
  - wil421 7y ago
    Russia will give it back? They are still occupying parts of Georgia.
    - helge9210 7y ago
      Eventually. Voluntarily with reparations or after Russian state collapse.
      - jwieczorek 7y ago
        Judging from the state of affairs in the two states in question – the Ukraine and Russia – I highly doubt Russia would be the first one to collapse.
        helge9210 7y ago
        It's Ukraine, not "the Ukraine".
      - wil421 7y ago
        That’s like saying most of Eastern Europe wasn’t part of the Soviet Union. They were just occupied by Soviets for a time. It’s true in an abstract way but not factual.
      - charlesdm 7y ago

by jMyles 7y ago

elliekelly 7y ago

It was done as a requirement to comply with the laws of the United States[1] and insisting it's a free speech issue does not make it so. The United States government has no obligation to care about the collateral silencing of non-citizen speech in a foreign country subject to economic sanctions. The government also has a mechanism where someone inadvertently impacted by sanctions can appeal to the Treasury Department and be granted an OFAC "license" that gives them permission to operate outside of the sanction(s). If the goal is to silence those who are subject to the sanctions that would be an odd way to do it. [1] https://www.law.cornell.edu/cfr/text/31/part-589 https://www.law.cornell.edu/cfr/text/31/part-589

jMyles 7y ago
> The United States government has no obligation to care about the collateral silencing of non-citizen speech in a foreign country subject to economic sanctions. Although it may not have a legal obligation under the current menu of precedents, I disagree that it has no obligation tout court. The real facts on the ground here are that a person's website was censored at the behest of the US Government. This is chilled speech. That the target happens not to be a US National, and also a national of a nation under sanction by the US government does not put it outside the realm of speech.
- smsm42 7y ago
  Not every issue where speech is limited is an issue of free speech. If you're told that you can not write on my house's wall, it's about speech, but not issue of free speech because it's my house and I decide who writes on it. If a mafia boss is imprisoned for ordering a contract murder, it's not issue of free speech, because even though the order was spoken, the murder is the crime that is punished, not speech. If you are not allowed to talk in the movie theater while movie is screening, it is not an issue of free speech - it's the issue of it being not the right place to speak. If there's a trade embargo that prohibits providing services to nationals of Elbonia and an Elbonian can't publish her speech - it's not the issue of free speech because the issue here is the embargo, not the speech. Having "speech" somewhere in the picture does not automatically makes it an issue of free speech. The same speech would be easily published if produced by anybody else. There's no issue with the content of the speech.
sneak 7y ago
Human rights to free association and free expression have nothing to do with citizenship. > The United States government has no obligation to care about the collateral silencing of non-citizen speech in a foreign country subject to economic sanctions. You have inverted the “care about”: if they simply did not care, it would be fine, as they wouldn’t be interfering with anyone’s rights. However, they are caring quite a lot, in the sense that they are willing to use violence to enforce these prohibitions.
wahern 7y ago
I agree people lean too heavily on Free Speech when criticizing the government, but there's actually a long running debate going back decades regarding the extent to which OFAC specifically and the U.S. government's sanctions regime generally can restrict various communication and publication platforms and activities. Just a few months ago I think there was a story on HN about the IEEE tweaking their participation rules, and IIRC their lawyers were pushing back on the OFAC. Here's a 2012 law review article (which I haven't read, yet), "Information Wants to be Free (of Sanctions): Why the President Cannot Prohibit Foreign Access to Social Media Under U.S. Export Regulations", https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3452&context=wmlr https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3... Arguably, Microsoft and Github are simply choosing to participate more strictly than what is legally required--including what's constitutionally permissible for OFAC to enforce. And of course that's the problem with these large, centralized, free services. They can kick people off whenever they want whether it was legally required by law or not, and they will because they're going to be very risk averse in situations where they're not directly deriving revenue. There are many other areas where corporations, in the pursuit of profits, play fast & loose with the law in the face of far greater potential fines and liability.

fkdo 7y ago

Does the first amendment apply to none us citizens/residents?

jMyles 7y ago
At a high level, the answer is something like "yes" - people who are not US Nationals who engage in protected speech in a region subject to police power of the United States have essentially the same protections as citizens or permanent residents. At a lower level, the answer gets close to "no" - I suspect that, in cases like this, something in the ballpark of Kleindienst v. Mandel will be controlling in the eyes of SCOTUS, so no. But even if this particular matter is not specifically regarded as protected speech under the 1st amendment by US Courts, it is still a free speech issue in general terms. This person's basic human right of expression has been abridged by the act of a foreign state and a spineless and compliant corporation.
kragen 7y ago
Yes, but this is sort of the wrong question — the fact that the USSR did not have a First Amendment did not make their official censorship ethically correct.

smsm42 7y ago

You confuse trade war with censorship. I'll explain the difference. Censorship is based on content: if you can say "long live Communist Party" but can't say "long live Republican Party", that's censorship. Trade war is based on origin: if you are not allowed to do trade (business) or provide services to residents of certain place, regardless of the content or purpose, that's embargo. > If that's not a free speech issue, there are no free speech issues. There are plenty, when exclusion is based on the content. This is not one of them. That's why filing a First Amendment lawsuit against trade embargo wouldn't do you any good.

jMyles 7y ago
> You confuse trade war with censorship. Indeed, but it's not for lack of trying. > exclusion is based on the content The pretext the speech falls short of inclusion in the category of "protected speech" because a different common thread can be drawn across its particulars is simply not convincing. Censoring speech in the basis of nationality instead of content doesn't making the underlying expression any less censored.
pyrale 7y ago
> Censorship is based on content: if you can say "long live Communist Party" but can't say "long live Republican Party", that's censorship. Using that definition, censoring all publications of a given group (say, black people) would not be censorship. That's a big hole in the definition.
- habnds 7y ago
  discriminating on the basis of race is banned separately. This would probably be addressed by the equal protection clause of the 14th amendment, not free speech under the first.
- smsm42 7y ago
  > Using that definition, censoring all publications of a given group (say, black people) would not be censorship It's not censorship, it's discrimination. Bad thing, but different. If it was censored because these people write about specific racial issues, it'd be censorship. If it's blanket denial regardless of the content, it's racial discrimination, not censorship. It doesn't mean it's not bad - one could argue it's even worse since it doesn't leave you any chance - you could probably talk in another way to route around censorship but you can't stop being black - but it's not that issue, it's a different one.

ryanmercer 7y ago

>Their Github Pages page was censored. They are unable to participate in the maintenance of an open source repository. This was done, according to Github, as a requirement to comply with the laws of its state. Software export is restricted to varying degrees, mostly encryption but there are other circumstances where export control exists on software (they used to be far more severe but have become considerably reduced). The BIS - https://www.bis.doc.gov https://www.bis.doc.gov - handles this and other CCL items. Here is the relevant CFR https://www.govinfo.gov/app/details/CFR-2012-title15-vol2/CFR-2012-title15-vol2-subtitleB-chapVII-subchapC https://www.govinfo.gov/app/details/CFR-2012-title15-vol2/CF... To export anything that contains encryption over 64 bits you have to register with the BIS and be reviewed before you export. Even open-source software requires that you notify the BIS. Other countries have similar export/import controls, see https://en.wikipedia.org/wiki/Wassenaar_Arrangement https://en.wikipedia.org/wiki/Wassenaar_Arrangement See also: https://www.bis.doc.gov/index.php/policy-guidance/encryption https://www.bis.doc.gov/index.php/policy-guidance/encryption https://en.wikipedia.org/wiki/Bureau_of_Industry_and_Security https://en.wikipedia.org/wiki/Bureau_of_Industry_and_Securit... https://en.wikipedia.org/wiki/Export_Administration_Regulations#Export-controlled_items https://en.wikipedia.org/wiki/Export_Administration_Regulati... https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States https://en.wikipedia.org/wiki/Export_of_cryptography_from_th...

wil421 7y ago

Free speech applies to the US. Last time I checked Crimea was in Russia. US companies have to follow US law. I worked for a company that was fined because they still had employees working in Syria when the war started.

helge9210 7y ago
It's not in Russia. It's in Ukraine under Russian occupation. This is the reason for embargo.
- wil421 7y ago
  Russia will give it back? They are still occupying parts of Georgia.
  - helge9210 7y ago
    Eventually. Voluntarily with reparations or after Russian state collapse.
    - jwieczorek 7y ago
      Judging from the state of affairs in the two states in question – the Ukraine and Russia – I highly doubt Russia would be the first one to collapse.
      - helge9210 7y ago
        It's Ukraine, not "the Ukraine".
    - wil421 7y ago
      That’s like saying most of Eastern Europe wasn’t part of the Soviet Union. They were just occupied by Soviets for a time. It’s true in an abstract way but not factual.
    - charlesdm 7y ago