6 ms·

> Given that code has been found to be protected free speech, at least in the US, causing its removal from GitHub seems like a clear violation of the constituti

by yuan43 4y ago

> Given that code has been found to be protected free speech, at least in the US, causing its removal from GitHub seems like a clear violation of the constitution. ... I doubt it very much. It is not a violation of the Constitution for the owner of a website to remove user-generated content. It happens all the time and has never been ruled to be unconstitutional. > ... Cryptographer Matthew Green noted that, but also pointed out the irony of removing code from a distributed, decentralized revision-control system like Git. ... GitHub != Git. And GitHub is not decentralized in anywhere close to the sense that Git is. I'm not sure where this author is getting their information from, but seems to be just repeating, uncritically, things said on the internet.

gizmo686 4y ago
The alledged unconstitutional behavior is not Github removing the code, but the policy (sanction) imposed by the US government that led Github to remove the code. The sanctions are unquestionably subject to constitutional review (although the details of how to apply that review in this case are not clear)
- threeseed 4y ago
  Would be curious on what basis it would be subject to constitutional review. First amendment has always applied to government actors not also to companies who are enforcing sanctions.
  - ptudan 4y ago
    The implication is that the sanction, which caused the removal of the code, is violating free speech. Github doesn't have a choice in removing it if they want to avoid getting sued.
    - threeseed 4y ago
      So according to this premise I could dismantle the whole system: 1) I reach out to all possible sanctioned entities and offer to host dummy content. 2) At some point in the future they become sanctioned. 3) Under threat of sanction I then remove the content. 4) Sanctioned entity files a First Amendment claim to have the sanction invalidated.
      - woojoo666 4y ago
        > 4) Sanctioned entity files a First Amendment claim to have the sanction invalidated. This should instead be "sanctioned entity files a first amendment claim to allow the dummy content to be freely hosted on the internet without punishment
  - ClumsyPilot 4y ago
    > First amendment has always applied to government actors not also to companies who are enforcing sanctions. So if goverment can outsource enforcement of sanctions to private actors then first amendment does not protect anything at all?
    - vkou 4y ago
      It protects you from going to jail for hosting this code on your own git instance. And GitHub isn't obligated to publish your speech, and you can't use the FA to compel it to do so. If you could, I'd be getting in line to get my fifteen minutes of airtime on the telly.
      - marshray 4y ago
        If the USG prevents you from contracting the services of publishing platforms, I think that would be a proper 1st Amendment issue. Probably the USG would argue that its interest in suppressing terrorist funding and money laundering overrides the 1st Am. (IANAL/IMHO)
        threeseed 4y ago
        > If the USG prevents you from contracting the services of publishing platforms, I think that would be a proper 1st Amendment issue. You don't have the right to compel a third party to enable your free speech. And nothing is stopping Tornado Cash from running their own public Git server.
        marshray 4y ago
        > You don't have the right to compel a third party Sure, but that's not what's going on here. The USG is compelling all third parties to refuse to provide the sanctioned entities with any services, which includes publishing services. > nothing stopping Tornado Cash from running their own public Git server. They will need to find an ISP willing to sell them bandwidth, which may prove difficult.
  - yieldcrv 4y ago
    oh this is easy, for Github Inc it chilled their speech as this sanction targeted expression by saying that interacting with the codebase is a sanctions violation. Github Inc's speech and expression was chilled because they thought they had liability OFAC sanction. Its not clear if they actually had liability. But they didn't want to find out.
  - yieldcrv 4y ago
    oh this is easy, for Github Inc it chilled their speech as this sanction targeted expression by saying that interacting with the codebase is a sanctions violation. Github Inc's speech and expression was chilled because they thought they had liability OFAC sanction. Its not clear if they actually did. But they didn't want to find out. if you want to have a rebuttal about some other scenario that you think would qualify as chilled speech, that scenario probably does and should also be challenged
    - vkou 4y ago
      You don't have an absolute right to arbitrary speech. I can't, for instance, do a public reading of a copyrighted work. I don't see why this case requires constitutional review any more than, say, the concept of copyright.
      - yieldcrv 4y ago
        have you ever noticed how legal analogies online often have fundamental flaws? the first amendment to the constitution does not modify the original constitution, specifically article 1 section 8 of the constitution where by Congress has the power to enact laws to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" if you think of another analogy let me know
        vkou 4y ago
        > have you ever noticed how legal analogies online often have fundamental flaws? Yes, they do, and none have more flaws than people trying to equate <speech plus behaviour that is not speech> with <speech>. > the first amendment to the constitution does not modify the original constitution Where in the first amendment does it say anything of the sort? It's a pretty short one, only one sentence long, but I can't seem to find it. When two parts of the document contradict eachother, it's not at all clear to me why you are giving precedence to the older one. To me, it seems that the more recent document should be the one that carries more weight. But if we're going to go with the oldest one, I'd remind us that American law is based on precedents made in English common law, long before the United States was founded. Perhaps we could plumb millenia-old legal cases for precedents that the constitution and its amendments should not be overriding... And besides, speech is a fundamental human right, far more important than the development of arts and science. You can't have the latter without the former.
- atian 4y ago
  It’s not unconstitutional for a company to think that they need (or want) to do something in response to a sanction. GitHub is not in the business of being legally innovative.
  - Ajedi32 4y ago
    It's not unconstitutional for GitHub to remove the code, it's unconstitutional for the government to force GitHub to remove the code via a sanction.
    - JumpCrisscross 4y ago
      > it's illegal for the government to force GitHub to remove the code via their sanction Yes. This isn't what happened. The code isn't sanctioned, the organization is. And these people were affiliated with the organization.
      - Ajedi32 4y ago
        So if I go and upload my fork of that code to GitHub it won't be removed?
        JumpCrisscross 4y ago
        > if I go and upload my fork of that code to GitHub it won't be removed? Nobody can say what GitHub would do. But they’d unlikely be under legal jeopardy from hosting it. (They may not want to bother with monitoring whether you continue to develop it or not, however.)
        Ajedi32 4y ago
        Why would they care whether I continue to develop it or not? I thought the code wasn't sanctioned.
        jasonlotito 4y ago
- gamblor956 4y ago
  Code is both speech and action, like libel or threats. While the content of the speech might be protected under the First Amendment, the act embodied in the speech might be criminal or tortious. In this case, while the content of the code might be protected, the activity it embodied violated the rules of multiple Western countries, not just the laws of the U.S.
  - woojoo666 4y ago
    Code is not action, running the code is. Same with anything else. It's not illegal to post instructions on how to strangle people.
    - danaris 4y ago
      Then surely the code itself is incitement to that action?
      - vageli 4y ago
        That's as much an incitement to action as revving an engine at a red light is incitement (it's not, see entrapment laws). You don't have to run the code.
- deleted 4y ago
  [deleted]
dcolkitt 4y ago
Private companies can of course choose to host whatever they want. And it's certainly not possible for Github to behave unconstitutionally because Github is not the government. But... the fact that speech was removed from a platform in obvious response to legal uncertainty created by the government, puts OFAC in serious hot water. When it comes to First Amendment issues, modern SCOTUS decisions have been extremely focused on "chilling effects". And it's near undeniable that Github's removal based on the timing was a consequence of chilling effects created by OFAC action, whether intentional or not.

by yuan43 4y ago

gizmo686 4y ago

The alledged unconstitutional behavior is not Github removing the code, but the policy (sanction) imposed by the US government that led Github to remove the code. The sanctions are unquestionably subject to constitutional review (although the details of how to apply that review in this case are not clear)

threeseed 4y ago
Would be curious on what basis it would be subject to constitutional review. First amendment has always applied to government actors not also to companies who are enforcing sanctions.
- ptudan 4y ago
  The implication is that the sanction, which caused the removal of the code, is violating free speech. Github doesn't have a choice in removing it if they want to avoid getting sued.
  - threeseed 4y ago
    So according to this premise I could dismantle the whole system: 1) I reach out to all possible sanctioned entities and offer to host dummy content. 2) At some point in the future they become sanctioned. 3) Under threat of sanction I then remove the content. 4) Sanctioned entity files a First Amendment claim to have the sanction invalidated.
    - woojoo666 4y ago
      > 4) Sanctioned entity files a First Amendment claim to have the sanction invalidated. This should instead be "sanctioned entity files a first amendment claim to allow the dummy content to be freely hosted on the internet without punishment
- ClumsyPilot 4y ago
  > First amendment has always applied to government actors not also to companies who are enforcing sanctions. So if goverment can outsource enforcement of sanctions to private actors then first amendment does not protect anything at all?
  - vkou 4y ago
    It protects you from going to jail for hosting this code on your own git instance. And GitHub isn't obligated to publish your speech, and you can't use the FA to compel it to do so. If you could, I'd be getting in line to get my fifteen minutes of airtime on the telly.
    - marshray 4y ago
      If the USG prevents you from contracting the services of publishing platforms, I think that would be a proper 1st Amendment issue. Probably the USG would argue that its interest in suppressing terrorist funding and money laundering overrides the 1st Am. (IANAL/IMHO)
      - threeseed 4y ago
        > If the USG prevents you from contracting the services of publishing platforms, I think that would be a proper 1st Amendment issue. You don't have the right to compel a third party to enable your free speech. And nothing is stopping Tornado Cash from running their own public Git server.
        marshray 4y ago
        > You don't have the right to compel a third party Sure, but that's not what's going on here. The USG is compelling all third parties to refuse to provide the sanctioned entities with any services, which includes publishing services. > nothing stopping Tornado Cash from running their own public Git server. They will need to find an ISP willing to sell them bandwidth, which may prove difficult.
- yieldcrv 4y ago
  oh this is easy, for Github Inc it chilled their speech as this sanction targeted expression by saying that interacting with the codebase is a sanctions violation. Github Inc's speech and expression was chilled because they thought they had liability OFAC sanction. Its not clear if they actually had liability. But they didn't want to find out.
- yieldcrv 4y ago
  oh this is easy, for Github Inc it chilled their speech as this sanction targeted expression by saying that interacting with the codebase is a sanctions violation. Github Inc's speech and expression was chilled because they thought they had liability OFAC sanction. Its not clear if they actually did. But they didn't want to find out. if you want to have a rebuttal about some other scenario that you think would qualify as chilled speech, that scenario probably does and should also be challenged
  - vkou 4y ago
    You don't have an absolute right to arbitrary speech. I can't, for instance, do a public reading of a copyrighted work. I don't see why this case requires constitutional review any more than, say, the concept of copyright.
    - yieldcrv 4y ago
      have you ever noticed how legal analogies online often have fundamental flaws? the first amendment to the constitution does not modify the original constitution, specifically article 1 section 8 of the constitution where by Congress has the power to enact laws to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" if you think of another analogy let me know
      - vkou 4y ago
        > have you ever noticed how legal analogies online often have fundamental flaws? Yes, they do, and none have more flaws than people trying to equate <speech plus behaviour that is not speech> with <speech>. > the first amendment to the constitution does not modify the original constitution Where in the first amendment does it say anything of the sort? It's a pretty short one, only one sentence long, but I can't seem to find it. When two parts of the document contradict eachother, it's not at all clear to me why you are giving precedence to the older one. To me, it seems that the more recent document should be the one that carries more weight. But if we're going to go with the oldest one, I'd remind us that American law is based on precedents made in English common law, long before the United States was founded. Perhaps we could plumb millenia-old legal cases for precedents that the constitution and its amendments should not be overriding... And besides, speech is a fundamental human right, far more important than the development of arts and science. You can't have the latter without the former.
atian 4y ago
It’s not unconstitutional for a company to think that they need (or want) to do something in response to a sanction. GitHub is not in the business of being legally innovative.
- Ajedi32 4y ago
  It's not unconstitutional for GitHub to remove the code, it's unconstitutional for the government to force GitHub to remove the code via a sanction.
  - JumpCrisscross 4y ago
    > it's illegal for the government to force GitHub to remove the code via their sanction Yes. This isn't what happened. The code isn't sanctioned, the organization is. And these people were affiliated with the organization.
    - Ajedi32 4y ago
      So if I go and upload my fork of that code to GitHub it won't be removed?
      - JumpCrisscross 4y ago
        > if I go and upload my fork of that code to GitHub it won't be removed? Nobody can say what GitHub would do. But they’d unlikely be under legal jeopardy from hosting it. (They may not want to bother with monitoring whether you continue to develop it or not, however.)
        Ajedi32 4y ago
        Why would they care whether I continue to develop it or not? I thought the code wasn't sanctioned.
        jasonlotito 4y ago
gamblor956 4y ago
Code is both speech and action, like libel or threats. While the content of the speech might be protected under the First Amendment, the act embodied in the speech might be criminal or tortious. In this case, while the content of the code might be protected, the activity it embodied violated the rules of multiple Western countries, not just the laws of the U.S.
- woojoo666 4y ago
  Code is not action, running the code is. Same with anything else. It's not illegal to post instructions on how to strangle people.
  - danaris 4y ago
    Then surely the code itself is incitement to that action?
    - vageli 4y ago
      That's as much an incitement to action as revving an engine at a red light is incitement (it's not, see entrapment laws). You don't have to run the code.
deleted 4y ago
[deleted]

dcolkitt 4y ago

Private companies can of course choose to host whatever they want. And it's certainly not possible for Github to behave unconstitutionally because Github is not the government. But... the fact that speech was removed from a platform in obvious response to legal uncertainty created by the government, puts OFAC in serious hot water. When it comes to First Amendment issues, modern SCOTUS decisions have been extremely focused on "chilling effects". And it's near undeniable that Github's removal based on the timing was a consequence of chilling effects created by OFAC action, whether intentional or not.