ISPs Should Not Police Online Speech—No Matter How Awful It Is.

Entrusting our speech to multiple different corporate actors is always risky. Yet given how most of the internet is currently structured, our online expression largely depends on a set of private companies ranging from our direct Internet service providers and platforms, to upstream ISPs (sometimes called Tier 2 and 3), all the way up to Tier 1 ISPs (or the Internet backbone) that have no direct relationships with most users.

Tier 1 ISPs play a unique role in the internet “stack,” because numerous other service providers depend on Tier 1 companies to serve their customers. As a result, Tier 1 providers can be especially powerful chokepoints—given their reach, their content policies can affect large swaths of the web. At the same time given their distant relationship to speakers, Tier 1 ISPs have little if any context to make good decisions about their speech.

At EFF, we have long represented and assisted people from around the world—and across various political spectrums—facing censorship. That experience tells us that one of the most dangerous types of censorship happens at the site of a unique imbalance of power in the structures of the internet: when an internet service is both necessary for the web to function and simultaneously has no meaningful alternatives. That’s why EFF has long argued that we must “protect the stack” by saying no to infrastructure providers policing internet content. We’ve warned that endorsing censorship in one context can (and does) come back to bite us all when, inevitably, that same approach is used in another context. Pressure on basic infrastructure, as a tactic, will be re-used, inevitably, against unjustly marginalized speakers and forums. It already is.  

So we were concerned when we started hearing from multiple sources that Hurricane Electric, a Tier 1 ISP, is interfering with traffic. Confirmation of the details has been difficult, in part because Hurricane itself has refused to respond to our queries, but it appears that the company is partially denying service to a direct customer, a provider called Crunchbits, in order to disrupt traffic to a site that is several steps away in the stack. And it is justifying that action because activity on the site reportedly violates Hurricane’s “acceptable use policy”—even though Hurricane has no direct relationship with that site. Hurricane argues that the policy requires its direct customers to police their customers as well as themselves.

If the site in question were Reddit, or Planned Parenthood, or even EFF, the internet would be up in arms. It is not, and it’s not hard to see why. The affected site is an almost universally despised forum for hateful speech and planning vicious attacks on vulnerable people: Kiwi Farms. For many, the natural response is to declare good riddance to bad rubbish—and understandably so.

At EFF, our mission and history requires us to look at the bigger picture, and sound the alarm about the risks even when the facts are horrific.

That means we need to say it even if it’s not comfortable: Hurricane Electric is wrong here.  It gives us no joy to call Hurricane on this, not least because many will perceive it as an implicit defense of the KF site. It is not. A site that provides a forum for gamifying abuse and doxxing, whose users have celebrated on its pages the IRL deaths of the targets of their harassment campaigns, deserves no sympathy.  We fully support criminal and civil liability for those who abuse and harass others.

But just because there’s a serious problem doesn’t mean that every response is a good one.  And regardless of good intentions, Hurricane’s role as a Tier 1 ISP means that their interference is a dangerous step. Let us explain why.

For one thing, Tier 1 ISPs like Hurricane are often monopolies or near-monopolies, so users have few alternatives if they are blocked. Censorship is more powerful if you don’t have somewhere else to go.  To be clear, at time of writing, there are two mirrored instances of KF online: one on the clear web at a country code top-level domain, and the other an onion service on the Tor network. So right now this isn’t a “lights out” situation for KF, and generally the Tor network will prevent that from happening entirely. The so-called “dark web” has plenty of deserved ill repute, however, so although it is resistant to censorship by Tier 1 ISPs, it is not a meaningful option for many, much less an accessible one.

Which brings us to the second point: this approach is usually a one-way ratchet. Once an ISP indicates it’s willing to police content by blocking traffic, more pressure from other quarters will follow, and they won’t all share your views or values. For example, an ISP, under pressure from the attorney general of a state that bans abortions, might decide to interfere with traffic to a site that raises money to help people get abortions, or provides information about self-managed abortions. Having set a precedent in one context, it is very difficult for an ISP to deny it in another, especially when even considering the request takes skill and nuance.  We all know how lousy big user-facing platforms like Facebook are at content moderation—and that’s with significant resources. Tier 1 ISPs don’t have the ability or the incentive to build content evaluation teams that are even as effective as those of the giant platforms who know far more about their end users and yet still engage in harmful censorship. ISPs like Hurricane Electric are bound to be far worse than Facebook and its peers at sorting bad content from good, which is why they should not open this door.

Finally, site-blocking, whatever form it takes, almost inevitably cuts off legal as well as illegal speech. It cuts with a chain saw rather than a scalpel.

We know that many believe that KF is uniquely awful, so that it is justifiable to take measures against them that we wouldn’t condone against anyone else. The thing is, that argument doesn’t square with reality, online or offline.  Crossing the line to Tier 1 blocking won’t just happen once.

To put it even more simply: When a person uses a room in a house to engage in illegal or just terrible activity, we don’t call on the electric company to cut off the light and heat to the entire house, or the post office to stop delivering mail. We know that this will backfire in the long run. Instead, we go after the bad guys themselves and hold them accountable.

That’s what must happen here. The cops and the courts should be working to protect the victims of KF and go after the perpetrators with every legal tool at their disposal. We should be giving them the resources and societal mandate to do so. Solid enforcement of existing laws is something that has been sorely lacking for harassment and abuse online, and it’s one of the reasons people turn to censorship strategies. Finally, we should enact strong data privacy laws that target, among others, the data brokers whose services help enable doxxing.

In the meantime, Tier 1 ISPs like Hurricane should resist the temptation to step in where law enforcement and legislators have failed. The firmest, most consistent approach infrastructure chokepoints like ISPs can take is to simply refuse to be chokepoints at all. Ultimately, that’s also the best way to safeguard human rights. We do not need more corporate speech police, however well-meaning.