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EFF Releases Statement About HE Blocking Kiwi Farms: 'ISPs Should Not Police Online Speech—No Matter How Awful It Is'

Recently, the Electronic Frontier Foundation released an article about the entire HE, IncogNET, and Kiwi Farms love triangle.

You know, when Hurricane Electric decided to drop downstream routes to prevent the infamous alt-right hate forum, Kiwi Farms, from using their network.

If you’re not aware, EFF is an international digital rights group based out of San Francisco. Particularly known for providing legal guidance and funding.

The article was aptly titled: “ISPs Should Not Police Online Speech—No Matter How Awful It Is,” and it quickly erupted around the internet.

Primarily because the entire article is hilariously on the fence, and written from a perspective where they very obviously didn’t want to support Kiwi Farms in any fashion… but knew they needed to speak on the topic.

Let me summarize it for you:

Censorship Is Bad

It opens as follows:

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.

Kiwi Farms Is Also Bad

They continued with the following:

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.

Censoring Kiwi Farms Is Not Good

The main argument they made is as follows:

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.

It’s the Cops Fault

They concluded their argument by stating the following:

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.

Interesting Take, EFF

More or less what they’ve said is Kiwi Farms is awful and shouldn’t exist, but ISPs shouldn’t be responsible for policing them and shifted the blame onto the police. It’s an understandable and relatively fair take, but it’s unrealistic.

This entire take relies on Kiwi Farms first moderating themselves, which is the problem.

Joshua Moon refuses to moderate Kiwi Farms, and so did IncogNET and Crunchbits (the upstream provider to IncogNET, and direct customer of HE), therefore…

Hurricane Electric was forced to take action based on the terms of service that downstream provider Crunchbits agreed to.

This take also requires Joshua Moon to assist the police in investigations, which is unlikely to happen.

For various reasons, one being he’s allegedly moved to Eastern Europe… for a reason.

He’s also verbatim refused to cooperate with the police over mass shootings in the past.

Here’s what he replied to the police about the Christchurch mass shooting when they approached him:

Is this a joke? I’m not turning over information about my users. The person responsible for posting the video and manifesto PDF is myself.

I feel real bad for you guys, you’ve got a quiet nation and now this attack is going to be the first thing people think of for the next 10 years when they hear the name New Zealand, but you can’t do this. Tell your superiors they’re going to make the entire country and its government look like clowns by trying to censor the Internet. You’re a small, irrelevant island nation barely more recognizable than any other nameless pacific sovereignty. You do not have the clout to eradicate a video from the Internet and you do not have the legal reach to imprison everyone whose posted it. If anyone turns over to you the information they’re asking for they’re not only cowards, but they’re fucking idiots.

My name is Joshua Moon, I’m a US Citizen living overseas. My company is contained within a Florida company. If you need an address to send physical documents to this works.

Lolcow LLC
913 Beal Pkwy NW
Suite A-1017
Fort Walton Beach, FL 32547

If you’re wondering, no. Kiwi Farms has nothing to do with New Zealand. Our name is a pointed jab at some of the mushmouthed autistic people we make fun of. Absolutely nothing about our community is NZ oriented.

And I don’t give a single solitary fuck what section 50 of your faggot law say about sharing your email. Fuck you and fuck your shithole country.

– Josh

NOTE: “The person responsible for posting the video and manifesto PDF is myself.” is incredibly important for later because it shows Kiwi Farms is not merely a platform, it is an extension of Joshua Moon’s personal views.

Furthermore, he has a notoriously public stalker using his site to this date.

Is HE in the Wrong?

Let’s be clear here: IncogNET profited off of Joshua Moon, the founder of Kiwi Farms.

TerraHost for instance (owned by Rob Monster) charged Joshua Moon a $1,500 monthly maintenance fee for allowing Kiwi Farms to exist on their network, and that was before all of the other service fees.

Joshua Moon does make a good amount of money from Kiwi Farms, therefore, can afford to pay hosts a premium for the annoyance he knows his site causes.

IncogNET in particular stands to financially gain when it comes to the continued hosting of Kiwi Farms. Crunchbits simply profited off of IncogNET’s relationship with Joshua Moon by association of operating through Crunchbits infrastructure.

It makes sense why IncogNET would be upset over losing their cash cow. It also makes sense why they have the choice of doing business with whoever they want, regardless of how terrible they are.

But what doesn’t make sense is that IncogNET is mad at a private company, Hurricane Electric, for having the right to choose who they do or do not do business with.

IncogNET is trying to police who Hurricane Electric is allowed to do business with, despite wordage in their terms of service with Crunchbits determining they have the ultimate power when it comes to abusive content on their network.

Notably, this part of HE’s master service agreement:

APPENDIX A: INTERNET SERVICE
This appendix only applies if Customer is receiving Internet Service from Hurricane Electric.
A.1 Acceptable Use Guidelines. Customer will at all times comply with and conform its use of the Service
to the Hurricane Acceptable Use Guidelines (set forth at Hurricane’s website), as updated from time to
time. In the event Customer violates Hurricane’s Acceptable Use Guidelines, Hurricane shall have the right
to immediately suspend Service. Hurricane will provide notice and opportunity to cure, if and to the extent
Hurricane deems practicable, depending on the nature of the violation and availability of the Customer.
Hurricane, in its reasonable discretion, may re-enable the Service upon satisfaction that all violations have
ceased and with adequate assurance that such violations will not occur in the future.

A.3 Illegal Use. Customer will cooperate in any investigation of Customer’s alleged illegal use of
Hurricane’s facilities or other networks accessed through Hurricane. If Customer fails to cooperate with
any such investigation, Hurricane may suspend Customer’s Service. Additionally, Hurricane may modify
or suspend Customer’s Service in the event of illegal use of the Network or as necessary to comply with
any law or regulation, including the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512, as
reasonably determined by Hurricane.

Here’s part of HE’s acceptable use policy:

No Hurricane customer shall:

  1. Do anything illegal or anything that adversely affects Hurricane’s legal interests. The following list is non-exclusive, and should not be considered license to commit other illegal activities not specified below. All illegal activity is prohibited, and Hurricane will cooperate fully with any law enforcement officials and/or agencies investigating and/or prosecuting such activities.
    1. Cracking/Hacking – attempts to access accounts or systems other than the user’s own accounts or systems or an account or system that the user has been explicitly authorized to access is illegal under federal and state law.
    2. Child pornography – as defined by U.S. law. This is strictly prohibited and dealt with quickly and harshly.
    3. Interstate gambling – because Internet traffic generally ignores state and country boundaries, any Internet based gambling site is restricted by Federal Inter-state gambling regulations.
    4. Pyramid schemes or fraud – are illegal under a number of Federal, State and Local laws.
    5. Theft of services – attempts to utilize services that are not contracted for is considered theft and will be dealt with as such.
    6. Harassment – use of Hurricane’s network to harass or threaten (in the legal sense of those terms) any other person is prohibited.
    7. Advocacy of violence against a specific person or class of people is prohibited.

Furthermore, all Hurricane customers must:

  1. Maintain the following email addresses and respond promptly to all email sent to these addresses:
    1. abuse@yourdomain.com
    2. postmaster@yourdomain.com
  2. Maintain and enforce on their clients an AUP similar in scope and intent to this document.
  3. Maintain a policy requiring proper “From” and/or “Reply-To” headers for email and usenet postings.
  4. Maintain proper security on their mail server, to prevent the mail server from being used as a “spam amplifier” by third parties. Servers must restrict “email relaying.” (Not applicable to customers who do not maintain a mail server.)

Hurricane reserves the right to terminate or interrupt any account in part or in full without refund for violation of these Acceptable Use Policy. In all but the most extreme or serious cases, good faith attempts will be made to resolve an issue without interruption of service. In cases where service has been terminated or interrupted, resolution will be handled on an individual case basis, at Hurricane’’s sole discretion.

How is there any case here?

IncogNET is not entitled to tell a private company who they must do business with.

Hurricane Electric decided to put morals over money, and that is their right as a private business, just as much as it is IncogNET or Crunchbits right to go to a different transit provider.

Context Matters

The law IncogNET pointed out is a law meant for consumer broadband:

Any person providing broadband internet access service in Washington state shall publicly disclose accurate information regarding the network management practices, performance characteristics, and commercial terms of its broadband internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services and entrepreneurs and other small businesses to develop, market, and maintain internet offerings.

The IncogNET to Kiwi Farms relationship is not a consumer relationship. It is a business-to-business relationship, responsible for hosting Joshua Moon’s personal alt-right blog and platform, which is registered through an LLC.

That is the very first thing HE lawyers will say, and they’re right.

Cherry-picking a paragraph of law and creating a complaint alone doesn’t inherently mean anything.

On HackerNews, IncogNET posted the following:

It was later in July. To be clear, filing a complaint is simply an online form. This does not involve or require lawyers or any expense.The TLDR version is: We filed it as a violation of HB2282, Washignton State’s Net Neutrality / Open Internet laws, the AG thought it was an appropriate complaint and forwarded it to HE. This gives them 21 days to respond. They (HE) responded relatively quickly, basically saying, “Nah, no we didn’t and no we don’t block access to it”. At this point it’d be up to us to fight it further. We’re not their direct customer, nor will we ever be (now). With that said, they very much WERE blocking access to the subnet as seen here

he

incognet

Seems to me more like IncogNET just wanted to make a PR statement to tap into alt-right outrage for advertising purposes, rather than actually intending to fight HE… but we’ll have to see how that plays out.

Also to my understanding, HE just blocked IPv6 access through a /32 IPv6 subnet. Josh also operated through a /24 of IPv4 through Hosteam on the clearnet (Josh’s ASN: 397702).

Section 230, Communications Decency Act of 1996

This is a law designed to protect companies like Google and Facebook from being legally liable for the content their users post to their platforms.

This is relevant because Joshua Moon frequently relies on the fact it is not him, but his platform that he has no control over actions like stalking, doxing, swatting, and harassment as a defense.

But, when you look at the site and how frequently Josh directly incites that behavior, an argument is made that he is in fact a publisher.

Publishers aren’t protected by the Communications Decency Act of 1996:

Section 230 is a section of Title 47 of the United States Code that was enacted as part of the Communications Decency Act of 1996, which is Title V of the Telecommunications Act of 1996, and generally provides immunity for online computer services with respect to third-party content generated by its users. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third-party users:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Section 230(c)(2) further provides “Good Samaritan” protection from civil liability for operators of interactive computer services in the good faith removal or moderation of third-party material they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Section 230 was developed in response to a pair of lawsuits against online discussion platforms in the early 1990s that resulted in different interpretations of whether the service providers should be treated as publishers or, alternatively, as distributors of content created by their users. Its authors, Representatives Christopher Cox and Ron Wyden, believed interactive computer services should be treated as distributors, not liable for the content they distributed, as a means to protect the growing Internet at the time.

Kiwi Farms certainly isn’t an ISP, but Joshua Moon, therefore Kiwi Farms (an extension of Joshua Moon) could certainly be considered an information content provider considering how frequently he uses the site as a blog to push his own views and particularly harmful and dangerous narratives.

This point is proven even further here:

kiwifarms joshua moon

Keywords here: “I can’t be censored”.

Section 230(c)(1) protects a company from publisher liability only when content is ‘provided by another information content provider.  Nowhere does this provision protect a company that is itself the information content provider.

According to 47 U.S. Code § 230 specifically:

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

According to Boston College law:

 Although § 230 provides federal immunity to a provider or user of an interactive computer service, it does not extend protection to an information content provider (“ICP”). Section 230(f)(2) broadly defines interactive computer services as entities that serve multiple users over the Internet, and both ICPs and ISPs are included in that definition. An ICP, unlike an ISP, creates or develops information published on the Internet. Once a company qualifies as an ISP under § 230(f)(2) and (c)(1), broad immunity from civil liability applies. A threshold question under § 230, therefore, is whether an entity qualifies as an ISP.

Section 230, however, is centered around civil law, not criminal.

Let’s Look at MegaUpload

The United States government decided digital piracy was becoming an increasingly larger issue.

MegaUpload was simply a file-sharing site with a couple of different forms of monetization. Anyone could upload content on it.

The United States government decided the team behind MegaUpload was a little bit too comfortable with hosting copyrighted content. Not the people uploading copyrighted content.

They were more or less charged with being guilty of being neglectful of the content being hosted on their platform.

Namely, the founder Kim Dotcom. The United States government went as far as raiding his New Zealand residence.

That was 10 years ago and Kim Dotcom is still fighting US extradition in New Zealand over racketeering, money laundering, and the conspiracy to commit various crimes.

Further, two MegaUpload execs were recently sentenced to two years in prison in New Zealand to avoid extradition to the United States. They both agreed to be witnesses.

The point I’m making here is the United States government doesn’t have time to police the users of any given platform. They don’t do that.

I agree that “solid enforcement of existing laws is something that has been sorely lacking for harassment and abuse online” is true.

However, it’s not realistic for the police to be the moderators of Kiwi Farms.

If we see legal action from the United States government, it’s very likely the focus will go directly to the top.

This presents another  question:

Can Joshua Moon Be Held Responsible for Kiwi Farms?

I’m not a lawyer, I can’t tell you if Kiwi Farms is breaking any laws. I’m just pointing out basic logic.

The United States government in the past had to create new laws to charge individuals who were responsible for controlling and influencing groups of dangerous individuals – but didn’t exactly do the actions themselves (namely, RICO).

The case of Kiwi Farms is a very unique case in the ever-developing realm of internet law.

The main defense Joshua Moon presents in terms of the legal liability of Kiwi Farms is as follows:

kiwifarms

More or less he shifts the blame from himself being responsible for these actions and influencing his audience, and instead positions Kiwi Farms as a platform out of his control.

But, he continually incites his own audience and is certainly responsible for influencing them to behave the way they do.

You can see it very recently, as in the last month:

joshua moon

Alt-Right rhetoric creates more radicalization that the world doesn’t need.

kiwifarm

Racism is shown here on top of Joshua Moon both bragging about his financial success as the result of Kiwi Farms and admitting he no longer lives in the United States intentionally.

Time and time again Joshua Moon is directly involved in the harassment of these individuals on his site.

What’s even worse is that he’s profiting handsomely off of the pain and suffering of groups of individuals and marginalized audiences like the LGBTQ+.

The site is very much a platform for Joshua Moon’s individual takes and views, and it’s reflected in his audience.

Probably the most relevant example of similar alt-right-centered content manifesting itself into real-world consequences, therefore, the founders into real-world consequences is the Proud Boys situation.

The Proud Boys were another group of primarily online radicalized alt-right individuals. Very much like the ones you find on Kiwi Farms…

They shared the exact same ideology:

  • Racism is cool
  • Women are bad
  • Antisemitism is good
  • All LGBTQ+ people are mentally ill

Basically, if you’re not an alt-right incel, you aren’t welcome on Kiwi Farms, or in the Proud Boys organization.

They directly influenced their followers to commit dangerous and violent acts, and hate speech was also free speech for them until they went too far, and it led to the leaders being sentenced to prison for seditious conspiracy.

Online radicalized pockets full of alt-right rhetoric and groupthink are dangerous, and it’s time that we start taking action before it results in another mass shooting.

It’s time people realize words said online manifest into real consequences…

I Certainly Agree With EFF Here

It’s time for the United States government to help the victims of Kiwi Farms’ constant stalking, harassment, and doxing… so companies like Hurricane Electric don’t have to when everyone else involved in the process fails to moderate the content produced and hosted on a vile and dangerous website.

It’s a good thing that EFF is bringing attention to the victims of Kiwi Farms, and calling for consequences.

Perhaps it requires the United States government to pay attention to the hate crime aspect of these frequently orchestrated stalking and harassment hate campaigns on individuals of marginalized groups.

Here’s Justice.gov’s take on hate crimes:

The term “hate” can be misleading. When used in a hate crime law, the word “hate” does not mean rage, anger, or general dislike. In this context “hate” means bias against people or groups with specific characteristics that are defined by the law.

At the federal level, hate crime laws include crimes committed on the basis of the victim’s perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.

Most state hate crime laws include crimes committed on the basis of race, color, and religion; many also include crimes committed on the basis of sexual orientation, gender, gender identity, and disability.

Further:

The “crime” in hate crime is often a violent crime, such as assault, murder, arson, vandalism, or threats to commit such crimes. It may also cover conspiring or asking another person to commit such crimes, even if the crime was never carried out.

Under the First Amendment of the U.S. Constitution, people cannot be prosecuted simply for their beliefs. People may be offended or upset about beliefs that are untrue or based upon false stereotypes, but it is not a crime to express offensive beliefs, or to join with others who share such views. However, the First Amendment does not protect against committing a crime, just because the conduct is rooted in philosophical beliefs.

Frequently Kiwi Farms users point out free speech or the First Amendment, but it’s important to note free speech is not endless.

Notably, per Justice.gov, “the First Amendment does not protect against committing a crime, just because the conduct is rooted in philosophical beliefs.”

That’s part of the problem here. The users of Kiwi Farms go way too far, and Joshua Moon doesn’t moderate it.

It’s not merely a right-leaning site that the “evil left journalist/media scum” want to cancel… It’s much further than that.

Doxing, stalking, and harassing people at scale, specifically because they belong to a marginalized group, to the extent they have to leave their home, and then the country, isn’t acceptable (Keffals).

An easily obvious example of a frequent occurrence of a hate crime on Kiwi Farms is the users of the site telling people to kill themselves based on their gender or sexuality (i.e. being trans). Some of these instances are directly incited by Joshua Moon himself.

Criminal stalking and harassment can all be enhanced as hate crimes in the states listed on this map.

There are quite a few that include sexual orientation and gender identity as an enhancement for bias-related crimes.

Washington Laws

Washington is the state that this entire offense arises out of, being the state the Kiwi Farms mirror in context was operating out of.

It has the following laws on hate crime offenses:

(1) A person is guilty of a hate crime offense if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability:
(a) Causes physical injury to the victim or another person;
(b) Causes physical damage to or destruction of the property of the victim or another person; or
(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same gender expression or identity, or the same mental, physical, or sensory disability as the victim. Words alone do not constitute a hate crime offense unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute a hate crime offense if it is apparent to the victim that the person does not have the ability to carry out the threat.
(2) In any prosecution for a hate crime offense, unless evidence exists which explains to the trier of fact’s satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person’s perception of the victim’s or victims’ race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability if the person commits one of the following acts:
(a) Burns a cross on property of a victim who is or whom the actor perceives to be of African American heritage;
(b) Defaces property of a victim who is or whom the actor perceives to be of Jewish heritage by defacing the property with a swastika;
(c) Defaces religious real property with words, symbols, or items that are derogatory to persons of the faith associated with the property;
(d) Places a vandalized or defaced religious item or scripture on the property of a victim who is or whom the actor perceives to be of the faith with which that item or scripture is associated;
(e) Damages, destroys, or defaces religious garb or other faith-based attire belonging to the victim or attempts to or successfully removes religious garb or other faith-based attire from the victim’s person without the victim’s authorization; or
(f) Places a noose on the property of a victim who is or whom the actor perceives to be of a racial or ethnic minority group.
This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state’s ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) through (f) of this subsection.
(3) It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, had a particular gender expression or identity, or had a mental, physical, or sensory disability.
(4) Evidence of expressions or associations of the accused may not be introduced as substantive evidence at trial unless the evidence specifically relates to the crime charged. Nothing in this chapter shall affect the rules of evidence governing impeachment of a witness.
(5) Every person who commits another crime during the commission of a crime under this section may be punished and prosecuted for the other crime separately.
(6) For the purposes of this section:
(a) “Gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
(b) “Sexual orientation” means heterosexuality, homosexuality, or bisexuality.
(c) “Threat” means to communicate, directly or indirectly, the intent to:
(i) Cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) Cause physical damage immediately or in the future to the property of a person threatened or that of any other person.
(7) Commission of a hate crime offense is a class C felony.
(8) The penalties provided in this section for hate crime offenses do not preclude the victims from seeking any other remedies otherwise available under law.
(9) Nothing in this section confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.

Then, the stalking laws in Washington are as follows:

(1) A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:
(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and
(c) The stalker either:
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.
(2)(a) It is not a defense to the crime of stalking under subsection (1)(c)(i) of this section that the stalker was not given actual notice that the person did not want the stalker to contact or follow the person; and
(b) It is not a defense to the crime of stalking under subsection (1)(c)(ii) of this section that the stalker did not intend to frighten, intimidate, or harass the person.
(3) It shall be a defense to the crime of stalking that the defendant is a licensed private investigator acting within the capacity of his or her license as provided by chapter 18.165 RCW.
(4) Attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed constitutes prima facie evidence that the stalker intends to intimidate or harass the person. “Contact” includes, in addition to any other form of contact or communication, the sending of an electronic communication to the person.
(5)(a) Except as provided in (b) of this subsection, a person who stalks another person is guilty of a gross misdemeanor.
(b) A person who stalks another is guilty of a class B felony if any of the following applies: (i) The stalker has previously been convicted in this state or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim’s family or household or any person specifically named in a protective order; (ii) the stalking violates any protective order protecting the person being stalked; (iii) the stalker has previously been convicted of a gross misdemeanor or felony stalking offense under this section for stalking another person; (iv) the stalker was armed with a deadly weapon, as defined in RCW 9.94A.825, while stalking the person; (v)(A) the stalker’s victim is or was a law enforcement officer; judge; juror; attorney; victim advocate; legislator; community corrections’ officer; an employee, contract staff person, or volunteer of a correctional agency; court employee, court clerk, or courthouse facilitator; or an employee of the child protective, child welfare, or adult protective services division within the department of social and health services; and (B) the stalker stalked the victim to retaliate against the victim for an act the victim performed during the course of official duties or to influence the victim’s performance of official duties; or (vi) the stalker’s victim is a current, former, or prospective witness in an adjudicative proceeding, and the stalker stalked the victim to retaliate against the victim as a result of the victim’s testimony or potential testimony.
(6) As used in this section:
(a) “Correctional agency” means a person working for the department of natural resources in a correctional setting or any state, county, or municipally operated agency with the authority to direct the release of a person serving a sentence or term of confinement and includes but is not limited to the department of corrections, the indeterminate sentence review board, and the department of social and health services.
(b) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. “Course of conduct” includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication, but does not include constitutionally protected free speech. Constitutionally protected activity is not included within the meaning of “course of conduct.”
(c) “Follows” means deliberately maintaining visual or physical proximity to a specific person over a period of time. A finding that the alleged stalker repeatedly and deliberately appears at the person’s home, school, place of employment, business, or any other location to maintain visual or physical proximity to the person is sufficient to find that the alleged stalker follows the person. It is not necessary to establish that the alleged stalker follows the person while in transit from one location to another.
(d) “Harasses” means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or when the course of conduct would cause a reasonable parent to fear for the well-being of his or her child.
(e) “Protective order” means any temporary or permanent court order prohibiting or limiting violence against, harassment of, contact or communication with, or physical proximity to another person.
(f) “Repeatedly” means on two or more separate occasions.
For good measure, here are Washington’s laws on criminal harassment:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. “Words or conduct” includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
(2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if any of the following apply: (i) The person has previously been convicted in this or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim’s family or household or any person specifically named in a no-contact or no-harassment order; (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person; (iii) the person harasses a criminal justice participant who is performing his or her official duties at the time the threat is made; or (iv) the person harasses a criminal justice participant because of an action taken or decision made by the criminal justice participant during the performance of his or her official duties. For the purposes of (b)(iii) and (iv) of this subsection, the fear from the threat must be a fear that a reasonable criminal justice participant would have under all the circumstances. Threatening words do not constitute harassment if it is apparent to the criminal justice participant that the person does not have the present and future ability to carry out the threat.
(3) Any criminal justice participant who is a target for threats or harassment prohibited under subsection (2)(b)(iii) or (iv) of this section, and any family members residing with him or her, shall be eligible for the address confidentiality program created under RCW 40.24.030.
(4) For purposes of this section, a criminal justice participant includes any (a) federal, state, or local law enforcement agency employee; (b) federal, state, or local prosecuting attorney or deputy prosecuting attorney; (c) staff member of any adult corrections institution or local adult detention facility; (d) staff member of any juvenile corrections institution or local juvenile detention facility; (e) community corrections officer, probation, or parole officer; (f) member of the indeterminate sentence review board; (g) advocate from a crime victim/witness program; or (h) defense attorney.
(5) The penalties provided in this section for harassment do not preclude the victim from seeking any other remedy otherwise available under law.

Anyways, as always, the Kiwi Farms saga continues to deliver, and we’ll continue covering it here on LowEndBox.

Until next time.

P.S. You know things are bad when a very Libertarian-leaning organization, EFF, is saying the government needs to intervene.

P.P.S. If you haven’t already seen our first LowEndBox article about Kiwi Farms, “Kiwi Farms, the Infamous Alt-Right Hate Forum, Might Be off the Clearnet for Good” – it’s worth a read.

Sir Foxy

5 Comments

  1. Val:

    The best take I saw on this matter so far. Thanks a lot for this article.

    September 2, 2023 @ 8:35 am | Reply
  2. Hey everyone, Curtis from IncogNET here. We weren’t reached for comment so would like to touch base on a few things that relate to us specifically.

    >Joshua Moon refuses to moderate Kiwi Farms, and so did IncogNET and Crunchbits (the upstream provider to IncogNET, and direct customer of HE), therefore…

    I can’t speak for other parties, but in our case, we received only one abuse report for KiwiFarms when we were announcing their ASN and a /48 of IPv6 downstream of us. Like many of the general complaints found about this website online, it was cookie-cutter and didn’t contain links to offending content and read like an opinion piece.
    I know that the service providers reading this understand how abuse departments generally work, and that actionable reports typically contain links to offending content for easy review and action. In our case, we happily and swiftly remove customers from our network participating in unlawful activity, but simply linking to a Wikipedia page and writing a paragraph or two of why the site is bad doesn’t qualify as a proper, actionable report.

    >Let’s be clear here: IncogNET profited off of Joshua Moon, the founder of Kiwi Farms.

    IncogNET operates as a business, not a charity, this is correct. While we do sponsor and provide some services free of charge for various privacy related projects, we are in fact a business. So, yeah.

    > It makes sense why IncogNET would be upset over losing their cash cow.

    Just as losing any other single regular customer wouldn’t impact our bottom line, neither does this. There is no, “controversy tax” applied nor are we “upset”. Business continues to operate as normal and we continue to expand to new markets in the United States with our Kansas City location and Allentown, PA in the next few weeks.

    It should be noted that the rate for hosting a site like Kiwifarms or hosting a blog about old classic cars or your favorite meatloaf recipes costs the same. Personally, it sounds like they got extorted from their previous provider if that was truly the price they were paying, but then again, I don’t know what sort of services or servers were being offered. Seems quite excessive, regardless.

    > But what doesn’t make sense is that IncogNET is mad at a private company, Hurricane Electric, for having the right to choose who they do or do not do business with.

    We remain strongly opinionated that Hurricane Electric should provide transit without censorship. It doesn’t seem that controversial to want a transit provider to operate without political bias, or at the very least, to behave professionally if and when they do have a concern. Starting a dialogue and communicating concerns is what most businesses would do, and something we’ve seen in the past from other upstreams. Dropping a route in the middle of the night with no communication and no reason given until after an AG complaint is poor practice, no matter what your opinions are on the site in question. Just as many people in this community would be upset if someone upstream of them cut service that impacted them or a customer without communication, complaint, or acknowledgment you can understand why we felt upset at them as well.

    Hosting providers: Imagine if Hurricane Electric denied access to an entire /24 of IPv4 just because they didn’t like a customer on a single IP in that subnet? Would you support them impacting your ability to provide service to hundreds of other of customers just because one of their employees received a complaint from “an industry colleague” about a site that is on only one of those IPs? It’s easy to say, “Yeah, well Kiwifarms sucks so who cares?” but too many people are incapable of seeing past what is right in front of them. Do the people reading this think it’s a good idea that global transit providers can do this? It’s absolutely a terrible precedent.
    We’ll continue to echo the sentiment that transit providers should operate apolitically moving forward, as will many others in our industry and digital rights organizations. We believe in open communication and dialogue, so at the very least, express a complaint and discuss it as one may come to expect from professional businesses.

    >Seems to me more like IncogNET just wanted to make a PR statement to tap into alt-right outrage for advertising purposes, rather than actually intending to fight HE… but we’ll have to see how that plays out.

    We’ve been hosting free speech content well before Kiwifarms. I started IncogNET in 2020 as a response to a lack of privacy focused hosting solutions that also catered to freedom of speech. There was a niche in the industry that wasn’t being filled properly, and privacy and speech issues are something I’m passionate about, so it made sense to target that niche. It’s easy to say, “Oh, it’s just a PR statement” when we are vocal about these issues, but it’s literally what the foundation of our business was built on. We’ll always be vocal on the issues that relate to our core business.

    > The law IncogNET pointed out is a law meant for consumer broadband:

    This isn’t actually clear, and is currently being debated by people smarter than both you and I. As we’ve stated elsewhere that you could have quoted us on, the truth is, we don’t know who is right. You said it yourself, “Cherry-picking a paragraph of law and creating a complaint alone doesn’t inherently mean anything.” That applies both ways, so let’s let the smart people figure it out. It remains in our opinion that Washington State’s House Bill 2282 would offer protections for these sort of things, but it’s a highly debated topic with people making good points on all sides.

    ————–

    Anyhow, I just wanted to touch base on this. Despite being an active and paying member of this community we were never asked for comment, so I hope that this gets seen by those interested in more than one man’s opinion piece.

    In closing, please consider donating to the EFF! Read up on what they do at https://eff.org and check out some of the tools they have that many of us all use: https://www.eff.org/pages/tools . You’ll see they’re the ones behind Certbot, the tool many use for automated renewal of LetsEncrypt certificates, HTTPS Everywhere, a very popular tool for forcing https connections where able, and Privacy Badger, a browser plugin that helps protect you from analytical and advertising trackers. Beyond that, they’re very active in fighting for digital rights for everyone. Definitely a great organization!

    September 2, 2023 @ 12:15 pm | Reply
    • Tito:

      Hey hey Incognet Cuz!

      I just read your whole comment on this and I don’t think it’s that hard to honest why Hurricane Electric cut off the Kiwi Farms from accessing their network.

      By transiting the site, you guys were in violation of Rules 6 and 7 of HE’s AUP (harassment and advocacy of violence), and don’t even enforce an AUP that was remotely similar to HE’s document at all.

      Hate to tell you this cuz, but this was all pretty much your own fault. (you should also be grateful that Hurricane Electric didn’t discipline you guys and Crunchbits too)

      As the Ancient Hawaiians used to say: “Don’t look for the waves, let them come to you.”

      September 5, 2023 @ 4:07 pm | Reply
    • anon:

      >I can’t speak for other parties, but in our case, we received only one abuse report for KiwiFarms when we were announcing their ASN and a /48 of IPv6 downstream of us. Like many of the general complaints found about this website online, it was cookie-cutter and didn’t contain links to offending content and read like an opinion piece.

      that’s odd, because there was at least one abuse report made to you about kiwifarms that did contain multiple links to offending content.
      this report was closed without response.

      September 7, 2023 @ 5:32 pm | Reply

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