By Yoree Koh and Jacob Gershman
Technology companies' recent moves to address white supremacists
thrust them into unusual territory for corporations that often take
a more hands-off approach toward who uses their services and
how.
In the wake of weekend violence at a white supremacists' rally
in Charlottesville, Va., Alphabet Inc.'s Google and GoDaddy Inc.
stopped providing hosting support for the Daily Stormer, a neo-Nazi
site that the companies said violated their terms of service.
Airbnb Inc. banned participants in the rally from staying in
rentals booked through its site.
Uber Technologies Inc. blacklisted white supremacist James
Allsup after Mr. Allsup and another passenger allegedly made racist
remarks to their driver in Washington, D.C., on Friday night. In a
video Mr. Allsup posted on Twitter, Mr. Allsup is heard asking the
driver, "how are we racist?" Crowdfunding site GoFundMe removed
campaigns to raise money to bail out the driver charged with
speeding into a crowd of counterprotesters on Saturday, which
killed 32-year-old Heather Heyer.
Facebook Inc. said it removed on Tuesday the profile of Chris
Cantwell, a white supremacist who was featured in a Vice
documentary on the Charlottesville protests. The company also said
it took down at least eight accounts and pages related to white
supremacist groups, such as "White Nationalists United."
On Wednesday, Twitter Inc. suspended the Daily Stormer's
account. A Twitter spokesman said that while he cannot comment
about individual accounts, "The Twitter Rules prohibit violent
threats, harassment, hateful conduct, and multiple account abuse,
and we will take action on accounts violating those policies."
Also on Wednesday, web security startup Cloudflare said it
closed Daily Stormer's account, making the site slower and more
vulnerable to attack. Cloudflare co-founder and CEO Matthew Prince
said in a blog post that while the company had wanted to remain
"content neutral as a network" Daily Stormer's claims that "we were
secretly supporters of their ideology" pushed Cloudflare to cut the
site off.
Behind the swift action from the firms lie considerations about
freedom of speech and the legal application of company policy,
which seems to vary depending on who the end user is. Companies
that are considered communications platforms have the greatest
leeway to enforce policies that bar certain users, legal experts
say.
Tech companies "certainly have the right to make their own
judgments about what's in the terms of service and whether it's
being violated," said Mike Yang, former general counsel at
Pinterest Inc. and a former deputy general counsel at Google.
Recently, the debate about what kind of speech tech firms allow
on their platforms has focused on companies such as Facebook, which
has hosted fake news as well as violent live videos, and Twitter,
which has ramped up efforts to remove some accounts from its
site.
Following the violence in Virginia, domain registrars -- which
act as intermediaries by making sure that a website's domain name
is linked to the correct IP address -- have also become arbiters of
free speech. If a registrar pulls service from a site, the site
will appear offline to the public until it finds another
registration provider.
"The number of net intermediaries acting as gatekeepers has
increased" since GoDaddy booted Daily Stormer, said Daphne Keller,
who studies platforms' legal responsibilities at the Stanford
Center for Internet and Society. "Suddenly the domain registrars
are sitting in judgment on content and speech," joining the usual
players around free speech such as Google, Facebook and Twitter.
Now that Cloudflare has pulled the plug on Daily Stormer, security
and domain name servers can be added to the list, a move that Mr.
Prince says was a dangerous one to make, in part, because of the
risks that come with getting involved in "content policing."
Domain registrar GoDaddy said that while it doesn't usually take
actions on complaints that would "constitute censorship of
content," it decided that an article Daily Stormer posted
ridiculing Ms. Heyer crossed the line "to promoting, encouraging,
or otherwise engaging in violence against any person." On Sunday,
it gave Daily Stormer 24 hours to find a new registrar.
Daily Stormer then registered on Google. Hours later, Google
canceled Daily Stormer's website-hosting registration, saying the
site violated Google's policies against inciting violence. Daily
Stormer, whose site was inaccessible Tuesday, didn't respond to a
request to comment.
Daily Stormer has reappeared on the web under what appears to be
a new domain name, indicating it had found a new domain registrar.
That address appeared to be offline on Wednesday after Cloudflare
discontinued its service. It will be able to reappear once that
domain name moves to a new domain name server provider.
Many of the actions that companies have taken against
supremacists would probably be unconstitutional under the First
Amendment if imposed by an elected official or public agency,
experts say. The First Amendment's protections of speech and
expression are restrictions on government power.
"In general, the First Amendment is no barrier to discrimination
on the basis of ideology or speech by a private person or entity,"
said Dale Carpenter, a constitutional law professor at SMU Dedman
School of Law in Dallas.
Airbnb rejected the reservations of some visitors to
Charlottesville after it said it learned earlier this month that
they were planning to stay in and organize "a series of after
parties at several Airbnb listings while in town to attend this
terrible event," the company said in a statement. The company
pointed to its community commitment as the reason for rejecting
their reservations.
"We require those who are members of the Airbnb community to
accept people regardless of their race, religion, national origin,
ethnicity, disability, sex, gender identity, sexual orientation, or
age," the company said. "When we see people pursuing behavior on
the platform that would be antithetical to the Airbnb Community
Commitment, we take appropriate action."
However, companies such as Airbnb and Uber could face more
challenges to applying their policies because the business segments
they operate in open them up to a host of local laws, experts say.
Businesses that offer their services to the public must comply with
state and local laws banning various kinds of discrimination. Those
laws typically protect against discrimination on the basis of race,
religion, ethnicity and gender. Unless a company is targeting
supremacists because of their gender or race, those laws probably
wouldn't apply, according to UCLA constitutional scholar Eugene
Volokh.
That isn't true everywhere. A few places like Seattle have laws
that also ban discrimination on the basis of political ideology.
Seattle's public accommodations law says a business can't turn away
a patron because of conduct "reasonably related to political
ideology" unless the customer's conduct would "cause substantial
and material disruption" of the owner's property rights.
In California, where antidiscrimination laws are particularly
strong, its courts ruled that a German restaurant in Torrance
couldn't evict patrons just for wearing swastika pins. An
unsubstantiated fear of "troublemakers" didn't justify a topless
bar owner in San Diego in denying admission to men displaying
motorcycle club insignias, under a separate ruling.
Airbnb has argued in lawsuits against cities like San Francisco
and Anaheim, Calif., that it is a communications platform, putting
it in the same class as Facebook or Twitter, not a short-term
rental business. The lawsuit against San Francisco was settled in
May without a clear resolution on whether Airbnb is a
communications platform. Anaheim appeared to recognize Airbnb as a
communications company.
For Airbnb, excluding renters based on their racist views is a
shift from last year, when the company changed how information is
shared on its site after renters said hosts discriminated against
them for race or other characteristics.
Write to Yoree Koh at yoree.koh@wsj.com and Jacob Gershman at
jacob.gershman@wsj.com
(END) Dow Jones Newswires
August 16, 2017 20:10 ET (00:10 GMT)
Copyright (c) 2017 Dow Jones & Company, Inc.
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