I agree with your analysis. Ex post facto criminal laws are barred by the constitution for good reason. Retroactive punishment leaves people guessing what actions might or might not be punished.
This consideration would apply if and only if the government would actually pursue criminal charges against someone who contributed to TornadoCash - which they possibly would if someone would do stuff after these sanctions e.g. try to circumvent this GitHub block, make and advertise a replacement service, etc; do not do this if US laws apply to you.
I understand this to be the case. I don’t understand how anyone considers this to be even remotely sane.
We landed with the concept of a "common carrier."
Railways, as well as telecommunications companies, ISPs, public airlines, bus lines, taxicab companies, phone companies, cruise ships, motor carriers, freight companies, and others CANNOT discriminate.
As an individual or a small business, ones does not have an alternative to Microsoft Word, github, or Facebook.
If these companies are allowed to discriminate, we'd be in a position where, again, monied entities can shut down individual small businesses, or ostracize individuals, as they see fit.
Once you provide a sufficiently central service, you should not be allowed to discriminate.
- Microsoft Word — Google Docs? Apple Pages? Zoho Docs? OpenOffice?
- GitHub — GitLab? sourcehut? Bitbucket? Gitea?
- Facebook — Twitter? Instagram? TikTok? SnapChat?
The thing about Git is that it's free software. Anyone can run their own server for very little money. If you get banned from the railroad, you can't just get your own train.
Also, use a private account for private stuff, if that wasn't obvious
The value comes from the network.
This: "GitHub shouldn't be allowed to deny me service because I want to use it" isn't a fair paraphrasing of my argument. I don't think it's likely that github would ban me specifically.
My argument is Microsoft (and Google, Facebook, etc.) shouldn't be allowed to cancel/bankrupt/ostracize competitors, critics, political opponents, or others they don't like. That means we should all be able to access those platforms under equal RAND terms.
If Microsoft is allowed to play dirty, the major impact on me is indirect, in that we will have fewer checks-and-balances in society (people and organizations will be afraid to criticise them), less competition, less innovation, more political corruption, etc.
Antitrust hasn't kept up with technology. In this case, though, we developed perfectly good mechanisms (and learned what happens without them) a century ago.
> Antitrust hasn't kept up with technology.
(a.k.a robert bork and the "its not consumer harm if prices keep going down" school of thought with regard to anti-trust)
With Standard Oil, prices didn't go down, except in the very short term. Monopoly can seek out higher profits once monopoly is obtained.
The pricing of LinkedIn, of dating web sites (almost all now owned by match.com), and of many other services is astronomically high, mostly because they can.
> many other services is astronomically high, mostly because they can
Google Docs, gitlab or bitbucket, and as for social network there's plenty out there.
None of those are real monopolies. They _might_ be best in class, but there's no rule that says you must be allowed to use the best in class service.
I believe the information was visible to either all logged-in users or just all visitors, but that still requires facebook to serve the page to me.
Common Carrier <= Monopoly1) If I want to exchange redlined documents with lawyers, I need Microsoft Word. I cannot run a successful business which deals with law firms without Microsoft Word. Most businesses need to deal with law firms. If Microsoft shuts me out of Word, I cannot have a business.
2) If I want to promote my local business, I need to be on social media platforms which my likely customers use.
3) The same goes for niches. If I'm supporting K-12 writing teachers, I need to support Google Docs.
It's not a question of alternatives, best-in-class, or anything else. It's pure network effects. If a platform is >50% dominant in my market, I need to support it, or I'm out-of-business. No one will switch from Twitter to Mastodon or Parler for the sake of doing business with one small business. They'll go next door.
Once a firm has that level of market power, I think it ought to be regulated, both for the same reasons and in the same ways as railways were in the days of Standard Oil.
These companies can literally just kill a small business if they chose to. That's not healthy.
I find your reasoning here disingenuous. I have been running a business for almost 2 decades, dealing with law firms and everything and I haven't used Word since I was in high school.
Microsoft Word makes the world go round. Sure I can use Wordpad and export a docx file, but no tables, no special effects, etc
Funnily enough, several of the things you have listed (I believe, actually, most of them) are not common carriers but contract carriers. That means they can discriminate, except against the enumerated prohibited classes.
I don't think anyone can say Nike has 20% of all US customers of shoes.
But its almost certain that Github has > 20% of all US customers in software development.
Here lies the point. In order to enforce antitrust, there should be a clear line that once crossed, you are deemed a common carrier or something to that effect.
I think even as low as 10% of the US market for a given good or service sounds like a reasonable threshold where you automatically lose rights as a US company to determine who you associate with arbitrarily (because your lobbying power and market power are so great at 10% of market, you need to be neutered in some fashion once you reach that size)
https://csimarket.com/stocks/competitionSEG2.php?code=NKE
I truly don't understand the logic of stating every organization with 10% market share of any kind of product is now instantly a "common carrier". To me that's massively watering down the meaning of "common carrier" past the point of usefulness. A common carrier classicially is when there's realistically no possible alternative. There's really only going to be one or two railways going through a city or town. It doesn't make sense for there to be a dozen different water systems or coax telecommunications providers or fiber providers or electrical providers in a city. But if Nike doesn't want to sell me shoes I can just go to Sketchers. Or Addidas. Or Vans. Or Footlocker. Or Journeys. Or Kohls. Or any other of a dozen different department stores. Or Target/Walmart/other big box store. If Nike doesn't want to sell me shoes, there's tons of other options. Even just buying Nikes at a different retailer! And that's just in person shopping, never mind the literally thousands of retailers online willing to ship me shoes!
But no. Nike is now a common carrier. They must do everything they can to ensure I can buy their shoes at a government-ensured fair price. So they must build a store in the middle of nowhere to ensure I can easily walk there, look at their wares, and decide I'd rather just buy from TOMS.
Then the idea that GitHub is a common carrier is even more distant. There's lots of options out there. You could use GitLab, Bitbucket, Team Foundation Server, JetBrains Space, Beanstalk, AWS CodeCommit, Google Cloud Source, Sourcehut, and so many others. They're all right there on the internet. You don't have to sell your house and move to the next county over to use Bitbucket. You just change your remote and push.
On the other hand, they are a common carrier - they aren't limiting which countries or streets I'm allowed to wear their shoes on, nor what kinds of sports I choose to play with them.
I don't think anyone would be favourable to giving Nike more control over how people use their products
That's...not a common carrier at all. Traditionally, a common carrier is "a person or company that transports goods or passengers on regular routes at set rates." So traditionally, a rail line is a common carrier. A pipeline is a common carrier. Air freight and truck shipping, kind of, but you're then getting away from that "regular routes" kind of thing. This was then logically expanded to things like telecommunications, since they're essentially transmitting data along regular routes aka the actual telephone wires.
A big thing about becoming "common carriers" was this idea of regular routes. Competition gets challenging/impossible when there's really a single route for some things. There's really only going to be one set of rails connecting towns. There's not going to be a bunch of different companies stringing telephone wires to everyone's houses. There aren't going to be a lot of fiber runs through a neighborhood. These things are all common carriers and are natural monopolies.
I can go buy an apple at the grocery. I can eat that apple raw. I can turn it in to apple sauce. I can bake it in a pie. I can juggle with it. I can give it to a friend. I can donate it to charity. The fact I can do all these things with it does not make the apple producer or the grocer a common carrier. It's entirely unrelated.
The person I was replying to was stating any company with 10% market share in any kind of metric should be considered a common carrier. Nike has more than a 10% market share in total revenue of sport clothing. So they say Nike should be a common carrier. This makes no sense to me.
Notice im talking about shoes, not sneakers. theres a ton of womens wear that probably is a significant share of the whole market, of which nike has exactly 0%
Lets make it simple so there is no misunderstanding. Any company ownning at least x % of a given NAICS or SIC code. There.
Also, expanding out to "all shoes" or all apparel is like making GitHub "all developer-focused Software-as-a-Service". Can I really use Prada Satin platform sandals with crystals in the same way as Nike React Infinity Run Flyknit 3's? No, their utility is very different and they're not really interchangeable. Can I use Sendgrid in the same capacity as I use GitHub? No, their utility is very different and they're not really interchangeable. You need a tighter market segment to point to, such as at least "sports clothing" or "fashion clothing" or "source-code management" or "external communications tools".
Even then, I'm not so sure GitHub definitely has 20% or more of that whole market. It definitely has deep penetration in some parts of the market and it wouldn't surprise me if it does have 20% or more, but I wouldn't just necessarily just assume that. Do you have any information to share on actual marketshare? I don't and I did briefly look for it.
Unless some content is more “freedomtastic” than others but then that leads to determining what is acceptable speech and what is not. That is more dangerous than allowing private entities complete control because the central tenet of freedom of expression is that all expression is equally free.
In actuality no speech is more or less valid— you just have no obligation to propagate it no matter how important or unimportant it is.
And the scale argument, what most people fall back to when they realize that their initial position is indefensible, is irrelevant.
A single word written on a scrap piece of paper read by one person is just as important as a mass-messaging appeal that is vital to the billions.
An organization, vital to the very existence of all human beings on earth has the same rights to control their property as a single homeless person whose only possessions are the things he carries on his person.
Or at least, they should. Perfection is unattainable but we should strive for it so that systems where a homeless person doesn’t have the same protections as a multibillion-dollar corporation should not see calls for the large entity to have its rights curtailed but instead should see calls for the small entity to have its rights enhanced.
As far as I’m aware the only exceptions to this, broadly speaking, have been those made for health and safety purposes or when entities have been granted a license or permission to own finite public resources like the radio spectrum, or if criminal law has been violated.
- git by design completely decentralized.
- crypto by design and inherent in its philosophy decentralized
"GOVERNMENT SHOULD MAKE GITHUB GIVE ME AN ACCOUNT!"
Why do you say that?
And that's where all the developers who contribute to my projects have accounts.
There's nothing magical about the github system, but it's where the network of projects and developers lives.
I agree that GitHub’s actions are not regulated by the constitution or criminal.
Additionally I imagine Guthub’s contract terms are such that they can cancel at any time for any reason.
What I intended to say is “I agree the poster who complains of retroactive account deletion. We can look to the constitutional process for some reasons why retroactive punishment might be a bad idea.”
I did not mean to imply that GitHub’s actions were unconstitutional. They were bad actions for the same reasons that the constitution bars retroactive punishment. It’s hard to guide current behavior based on future law. They were likely legal.
I meant to offer the constitutional reasoning as a source for why retroactive punishment is problematic. Not as the binding legal principle.
I agree GitHub CAN do this.
My post offered the opinion GitHub should NOT do this.
I think your analysis is flawed. They didn't come up with some new law and apply it to these people ex post facto. These accounts were contributing to the money laundering (per accusations, albeit indirectly).
Another way to look at it: if these people were contributing knowingly to a project that was laundering money, should they be punished? Of course.
If they are being punished for money laundering committed in the past while money laundering was illegal, that’s good enforcement.
If they are being punished for previous lawful contribution to an entity that was in the future sanctioned, that’s bad enforcement.