Subject: [hrpc] further re draft association

From: Sandra Braman <[email-masked]>
Date: Sat, 6 Feb 2021 08:48:49 -0600

Should have gone further myself re the concept of association.  In US law
-- again, only one body of national law, but illustrative of what work
further needs to be done on international law and on other national and
regional (EU) law as support for what needs to be further articulation of
what is meant by the concept of "association" here -- the concept of
association is reserved for those who have formally affiliated themselves
with a legally recognized group, whether that is a professional
association, a non-profit advocacy group, or a union.  Being a part of a
group that regularly communicates does not constitute "association" in US
law unless there is membership, etc., involved.  This is why WikiLeaks has
been so legally problematic.  The right of association itself provides
privacy protection under US law, as courts have recognized that requiring a
group to publish its list of members could infringe upon the right of
association if it means people will not join the group out of fear of
consequences if their membership were known.

This is why the cognate terms introduced earlier are so important
(conspiracy, racketeering, and collusion).  To correct what may have been
misleading in my earlier comment on investigations into conspiracy among
those who attacked the US Capitol in 2021, it is important to note that it
is conspiracy, not association, that is the word being used. For evidence
of conspiracy they are looking for a consistent pattern of communication
among the same people regarding the shared intention across time, and
specific plans for, engaging in specific illegal violent action. Those
involved will not be able to claim the right of association because in this
legal system is not involved.  The Proud Boys, for example, are not an
association.  When Communism was the issue, being a member of the Communist
Party involved association. Reading and discussing texts by Karl Marx and
others together outside of the formal Party context was not.

I don't know if signing up for a listserv quailifies as an association
under US law (and other laws), even though signing up is a contract to
conform to the rules for communication of the particular group involved;
with further research, the authors can find that out.  In the discussion of
mailing lists in the section on cases, there is reference to "free
association," meaning communication among a group of people, which in
itself does not reach the kind of formal association protected by US law.
Analyzing court cases for the various types of communication discussed in
cases included in the current draft on association, across jurisdictions,
would provide information on this point and related points that are
critical to the success of the argument being put forward here.  Being
involved with WikiLeaks is not association.

The fact that, as the authors discuss in their highlighting of points from
the APC manual in this draft, the Internet is useful for organizing
political protests does not mean that, under US law, the activities and
people involved are protected by the right of association (as inaccurately
claimed in this draft of the document) although their speech rights are
protected.  If it is, under other law, the authors need to clarify that and
be able to support the claim.

An important point to mention is the difference between prior restraint --
stopping something before it happens -- and punishment after the fact.
Prior restraint when it comes to speech rights include censorship, and the
kinds of interventions Internet protocols might put in place to make
particular kinds of intra-group communication difficult (if these authors
can specify what those might be).  Punishment after the fact includes being
held accountable for the consequences of one's speech.  As the authors of
this document note, the rights to freedom of expression and to assembly and
association are often related; the same distinction between prior restraint
and punishment after the fact applies.  Arresting people for engaging in
illegal violent action they took place in after assembling to express their
political views does not infringe on freedom of speech -- it is, if they
are convicted, punishment after the fact for illegal action.  On the speech
side, for those involved, if convicted, it would be punishment after the
fact for conspiracy to commit illegal violent action.

As mentioned earlier, it is necessary to distinguish the right to
association from the general right to communicate -- and from mob action.
DDOS is mob action, neither assembly nor association.  The authors really
do need to articulate the relationship between the issue discussed in each
case and either assembly or association as distinct from communication in
general.  Spam, in another example, for example, is about communication,
not assembly or association; limiting spam affects neither the right to
assemble or association.  If the authors want to argue otherwise
persuasively, they will need to fully develop the argument.  Peer-to-peer
networking is about communication, not association.  Yes, these matters are
intertwined, but in a court they are distinguished and need to be defended
separately, so it is separately that the arguments need to be made in a
document that is, as presented, intended to be specific to the rights of
assembly and association.

Be careful with the English language issue.  First, it is likely that these
authors, or at least some of them, support the notions of a "commons" for
use in as many areas as possible.  Having a shared language in which one
can communicate across geographies, societies, and cultures is a commons.
Second, the history of efforts by Internet designers to expand the capacity
of those using non-Roman alphabets online goes back to its earliest years
but faced a series of significant technical problems (I have a couple of
journal items documenting this via analysis of RFCs if anyone is
interested), so claiming those involved in the design process have been
inattentive is inaccurate.  Third, economists have pointed out that the use
of too many languages for a shared conversation (the quick rule is into two
digits or more) generates such enormous costs that doing so undermines the
political and other points of the shared conversation altogether.  Both the
European Union and South Africa (which has 11 official languages) have
suffered from this problem.  Note that the European Union does *not* publish
its documents in all of the languages of its member countries.  Fourth,
circling back to the first point, what is actually being recommended as an
alternative, and how could those involved in protocol design and network
architecture facilitate that alternative?

A couple of other small points:

- The use of "FAA" here unnecessarily adds jargon that is not in common use
among those who think about the rights of assembly and association (I've
never seen it used before in decades of reading and discussing such
matters), and is off-putting.  In the US, the "FAA" is the Federal Aviation
Agency.

- Are the authors treating assembly and association as two separate rights,
or as a single right?  The text goes back and forth on this point.  In US
law, the right to association is based on the right to assembly that is the
pertinent constitutional provision.  The extention to association developed
jurisprudentially.  I don't know the history of how the two concepts
developed and how they are related to and distinguished from each other in
other legal systems, but clarification on this point would also strengthen
this document.

- Internal consistency re terms used (such as either sociotechnical or
techno-social, but not both) will be helpful on the writing front as well.

- What do the authors mean by "holistic agency," both theoretically and
operationally?  The concept barely has a presence in the scholarly
literature.  It is not in wide use and its meaning is not clear.  Most of
that is found through a quick search on the phrase refers to a TV series
called "Dirk Gently's Holistic Detective Agency."

- Whether or not national laws that contravene international law is
"illegitimate" depends on which country, when, and how.  A country that has
not ratified a particular treaty is not bound to conform to its
provisions.  This problem with the document can be easily addressed with a
writing fix.

On Sat, Feb 6, 2021 at 2:34 AM <[email-masked]> wrote:

> Send hrpc mailing list submissions to
>         [email-masked]
>
> To subscribe or unsubscribe via the World Wide Web, visit
>
> https://urldefense.com/v3/__https://www.irtf.org/mailman/listinfo/hrpc__;!!KwNVnqRv!Tz24KK93zR7-vlgITffJXfcYuxYYLdJWEG_qIB6L-XN_o8XIxRb-e6k0uhG3L5TkV0s$
> or, via email, send a message with subject or body 'help' to
>         [email-masked]
>
> You can reach the person managing the list at
>         [email-masked]
>
> When replying, please edit your Subject line so it is more specific
> than "Re: Contents of hrpc digest..."
> Today's Topics:
>
>    1. comments, draft association (Sandra Braman)
>
>
>
> ---------- Forwarded message ----------
> From: Sandra Braman <[email-masked]>
> To: "[email-masked]" <[email-masked]>
> Cc:
> Bcc:
> Date: Sat, 6 Feb 2021 02:35:56 -0600
> Subject: [hrpc] comments, draft association
> First, to the authors, congratulations on this piece.  Clearly a lot of
> effort has gone into this.  Following are some thoughts regarding how this
> piece could be strengthened if it is to serve as an informational RFC
> rather than a journal article, organized by topic.  It is a background
> assumption of these comments that the document is intended to have utility
> to those involved in protocol design work via the IETF.  Long email alert.
>
> Sandra Braman
>
>
> ----------------------------------------------------------------------------------
>
> *Legal authorities used as justification*
>
> *International Treaties*
>
> The international treaties discussed in this draft are not a part of the
> scholarly literature covered in literature reviews, but the legal
> authorities on the basis of which claims made here are justified.  Although
> I agree with the authors that this is not the place for a comprehensive
> discussion and synthesis of the scholarly literature, coverage of the
> pertinent treaty provisions *should* be comprehensive.  Treaty provisions
> only matter, though, where treaties have been ratified.  It would also be
> useful to the reader to know the extent to which these provisions have been
> interpreted in courts in cases that have come their way involving assembly
> and association.
>
> Breaking out a paragraph for each treaty provision would highlight each
> for the reader and provide the space to include information on how many
> countries have actually ratified and thus are bound by the treaty, the
> kinds of conflicts that have arisen historically under each provision in
> the digital environment, and how those conflicts have been resolved.
> Organizing the provisions chronologically by when the treaties were
> initially signed (signing treaties and ratifying them are two separate
> steps) would offer the authors an opportunity to present a sense of a
> rising tide of appreciation of the importance of protecting the rights of
> assembly and association.
>
> *National Laws*
>
> There is reference to protection of the rights of assembly and association
> in national constitutions and laws.  It would strengthen the argument being
> made here to provide information on how many geopolitically recognized
> states (that is, those recognized by the UN) protect these rights and
> trends in this area.  There is discussion by American authors of American
> law in the literature review, by European Union groups about European law,
> and about international law -- can literature about national law by
> non-American authors about non-American treatment of assembly and
> association also be included?
>
> *Jurisprudence*
>
> The word "jurisprudence" shows up towards the close of the piece but
> jurisprudence is actually not discussed here.  An analysis of how courts
> have treated assembly and association in the digital environment would be
> invaluable.  There is a significant scholarly literature on this (that
> could usefully be expanded), but it is strongly recommended that the
> authors also actually go to the court opinions, which are themselves
> sources of law as well and thus included in this section of these comments.
>
> *Corporate Social Responsibility*
>
> The issue of the relative importance of the private sector in many of the
> factors affecting the rights to assembly and association runs throughout
> the document.  It is now widely recognized that, effectively, "governance"
> now includes not just what governments do, but also the formal and informal
> processes, rules, and practices of private sector entities; indeed, ICANN,
> the IAB, and the IETF are important examples of this.  The relative
> importance of third party intermediaries in facilitating, controlling, or
> preventing assembly and association makes this particularly important.
> Finally and far from trivially, since so many of those involved in the IETF
> are employees of corporations, including attention to this would speak very
> directly to them.
>
> It would thus significantly strengthen this document to include a section
> on treatment of assembly and association by those who analyze, audit, and
> develop best practices (*cum* rules) for private sector entities.  What
> does Ranking Digital Rights, for example, have to say about this?  Whether
> such entities do or do not explicitly address association and assembly, the
> reader wants to know.  This section should look both at what such auditing
> and best practice-setting organizations are doing, and at the significant
> literature on corporate social responsibility in the digital environment.
>
> *Literature Review*
>
> In my view, so few items are relied upon, with those relied upon quite
> heavily, that it is inaccurate to use "literature review" as a
> sub-heading.  That is particularly the case since much of the discussion in
> this draft's section by that title is actually not about the literature,
> but about treaties -- legal authorities, as discussed above.  My personal
> preference would be to see the authors taking advantage of more of the
> really strong literature in these areas (the gap between what is here and
> being comprehensive is very large), but whether or not that is done, I
> encourage you to drop the sub-heading. Doing so would be a form of
> "defensive writing," warding off an attack before it comes from those who
> know the literature in this area and know what is out there that you
> haven't taken advantage of.  You can attribute ideas and information from
> items you rely on without using the phrase "literature review."
>
> *Concepts*
>
> *Public vs Private*
>
> The tension between the sense of public discursive space and private
> ownership of the infrastructure is in the opening of this document and runs
> throughout.  However, that is not a binary distinction.  Rather, there is a
> spectrum of types of relationships between the two developed long before we
> entered the digital world.  In addition to "ownership" as a criterion of
> determining what is what, other criteria include "control of the space" and
> "history of use" in US law.  (I will discuss US law here as the body of law
> which I know best, and also as a body of law that has been particularly
> influential globally in areas such as this, but I strongly encourage the
> authors to go further in their reading to learn more about how these
> distinctions are made elsewhere both by states and in the international
> environment -- again, jurisprudence will be invaluable here.)
>
> The distinction as drawn in US law includes not only spaces that are
> purely public (e.g., public parks and streets) and purely private (e.g.,
> the home), but also those that are quasi-public and quasi-private.
> Quasi-public spaces are those that are owned and controlled by the public
> (the government), but are devoted to very specific uses that courts and
> legislatures have said justify restrictions on speech and assembly under
> certain conditions.  Jails and military bases are examples of such spaces.
> Quasi-private spaces are those that are owned and controlled by private
> entities, but have specific uses that are experienced as public by people.
> Because of that public dimension of these spaces, owners and/or controllers
> must meet certain specific requirements in order to legally restrict speech
> and assembly.  Examples of such spaces include shopping malls, company
> towns, and fairgrounds.  Courts use the "strict scrutiny" test in either of
> these conditions when conflicts over the exercise of rights arise.  Even in
> purely public environments, legal systems justify restricting speech under
> the kinds of conditions brought up in this document (e.g., threats to
> national security) as a question although not discussed.
>
> The concepts of quasi-public and quasi-private space have been used in
> analysis of speech and assembly rights in the digital environments.  Over
> the last couple of years, additional very interesting arguments are being
> put forward to claim things like social media data as public rather than
> private, drawing on analogues with telecommunications regulation.  The
> notion that private entities must serve as "trustees" on behalf of the
> public has been used to justify regulating telecommunications companies
> since at least the 1930s and is now being discussed in association with
> private companies that exert significant control over what we can do
> online.  The notion that data about the public should be treated as a
> public resource has been put forward in analog with treatment of the
> electromagnetic spectrum as a public resource used by private entities.
> More can be done here.
>
> All of this is to say that in my view this document would be much stronger
> if it unpacked the public/private problem rather than just mentioning it
> several times in passing, as the issue of the kind of space involved is so
> often important to assembly and association issues.  One place in the text
> that invites this kind of unfolding is in your definition of connectivity,
> which says it is "the *extent* to which a device or network is able to
> reach other devices or networks," suggesting there is a spectrum of
> possibilities.
>
> *Assembly and Association*
>
> The authors do a nice job of opening up the question of the distinction
> between assembly and association.  The danger of not being very clear about
> these concepts runs through some of the cases later discussed, as you don't
> want to conflate either of these concepts with simply the right to
> communicate.  I encourage the authors to go a further on this front,
> drawing on explicit legal formulations in international law and exemplar
> national and EU law.
>
> The US government faced great difficulty when trying to figure out who
> could be held liable for the massive WikiLeaks data dump that wound up with
> Chelsea Manning in prison for a long while and Julian Assange in the
> Ecuadorian Embassy in London.  Since autonomous networks don't exist as a
> legal subject, efforts to determine accountability ranged from Manning only
> all the way through to everyone who had looked at a tweet about the case (
> https://ijoc.org/index.php/ijoc/article/view/2668
> <https://urldefense.com/v3/__https://ijoc.org/index.php/ijoc/article/view/2668__;!!KwNVnqRv!Tz24KK93zR7-vlgITffJXfcYuxYYLdJWEG_qIB6L-XN_o8XIxRb-e6k0uhG32RfJt2s$>
> ).
>
> You will want to conclude your discussion of assembly and association with
> clear rules for how you would distinguish assembly from association in the
> digital environment.  Which is WikiLeaks, given the shifting and anonymous
> membership?  The distinction between the two matters for how each is
> treated by legal systems.  In the case of the Jan. 6, 2021, event at the US
> Capitol, legal matters are proceeding with great care to ensure that people
> who assembled in the space but were not a part of an association committed
> to violence are not treated as if they were a part of that association.
> Legal liability for actions goes up in US law, and I'm sure under many
> bodies of law, where there is association.  Thus the importance of
> "conspiracy," "racketeering," and "collusion" as terms of importance in
> resolving legal cases involving, in turn, illegal violent political action,
> crime, and competition/antitrust law.
>
> *Cases*
>
> Any selection of cases needs justification.  The authors state at the
> opening of the section discussing cases that not all of what is mentioned
> is actually addressable at the protocol level that is the business of the
> IETF to which this document is directed.  *By doing so, the authors
> provide strong, active support for those who insist that the human rights
> issues being discussed are just not the business of the IETF.*  I
> strongly encourage the authors to include only cases for which they can
> demonstrate the role of protocol design and network architecture.  For
> every such case, the piece would be much stronger if an actual
> recommendation regarding alternative choices for protocol design or network
> architecture are offered. Dave Clark's *Designing an Internet* provides a
> superb model for how this kind of linkage between the two kinds of concerns
> can be drawn.
>
> *Writing Issues*
>
> "Assembly" and "association" should be included among the terms defined at
> the opening of the piece.
>
> The pertinence of the cases will be more clear to the reader if you are
> explicit in each one just how assembly or association are involved.
>
> Bring the three separate notes on what the Internet is together into an
> internally coherent paragraph.
>
> The cases rely too much on quotes.
>
> The reference list should include full citations in addition to links for
> professionalism, and needs some cleaning up.
>
> There are a number of word use, punctuation, and grammatical errors
> throughout.
>
> This draft concludes with some high-level statements and then all of a
> sudden turns to introducing a new issue.  You can find a better close.
>
> *Utility for IETF Readers*
>
> Assuming you would like this to be actually used by IETF participants, can
> you include, in the conclusion, a checklist of things that those involved
> in protocol design and network architecture can actually look out for in
> the course of their work?
>
>
> _______________________________________________
> hrpc mailing list
> [email-masked]
>
> https://urldefense.com/v3/__https://www.irtf.org/mailman/listinfo/hrpc__;!!KwNVnqRv!Tz24KK93zR7-vlgITffJXfcYuxYYLdJWEG_qIB6L-XN_o8XIxRb-e6k0uhG3L5TkV0s$
>

---

From: [email-masked]
Date: Sat, 6 Feb 2021 16:21:37 -0500

On February 6, 2021 at 08:48 [email-masked] (Sandra Braman) wrote:
 > Should have gone further myself re the concept of association.  In US law --
 > again, only one body of national law, but illustrative of what work further
 ...

Wow that was an excellent read. Thank you.

-- 
        -Barry Shein

Software Tool & Die    | [email-masked]             | http://www.TheWorld.com
Purveyors to the Trade | Voice: +1 617-STD-WRLD       | 800-THE-WRLD
The World: Since 1989  | A Public Information Utility | *oo*