Electronic Frontiers Australia calls on Cloudflare to provide a detailed statement of reasons for its decision to, at first, continue providing services to its customer Kiwi Farms and then to cease providing those services. Such a statement would provide much needed clarity on how Cloudflare balances competing rights and interests when deciding whether or not to deny service to particular customers. Discussion of specifics, such as this case, would do more to educate customers, shareholders, and the public than general statements about hypotheticals.
We do not agree that “hard cases make bad law” and note that Cloudflare is neither a court nor a legislator. Easy cases are easy to decide; hard cases force us to wrestle with complexity and to explain why we have decided in one way and not another.
“Digital rights are human rights. We support the right to freedom of expression, and freedom of association. We also support the right to privacy. When rights come into tension or conflict, finding a fair resolution depends heavily on the specifics of an individual case,” said EFA Chair Justin Warren.
“EFA does not support revealing a person’s private information without the informed, ongoing consent of that person. However, EFA supports whistleblowers revealing private information to highlight the misuse of power or position, because to do so is in the public interest,” he said.
“When balancing competing rights and interests, the relative power of the parties is an important aspect that must be taken into account. Those with more power and privilege should generally be held to a higher standard.”
Cloudflare is a private business, and in a competitive market it should be free to choose who it wishes to do business with—and who it does not— subject to some restrictions. In Australian society, we generally require that businesses cannot refuse to serve some people merely because they are a member of certain protected classes of people. This is because, historically, people have been denied equal treatment due to their race, sex, gender, sexual orientation, or other irrelevant factors.
In this specific case, Cloudflare chose (at first) to provide its services to a particular group of people that are not members of any protected class. On other occasions, it has chosen to refuse service to people with less power and privilege, though they were also not members of a protected class. To the best of our knowledge, Cloudflare has not been compelled to make these choices but did so for its own reasons. Those reasons—both to include and to exclude—are unclear.
EFA suggests that it would be helpful if Cloudflare provided a detailed explanation of how it balanced the competing rights and interests in this specific case to first decide to continue to provide services to its controversial customer, and then to change its mind. This would enhance transparency and trust, and help to allay concerns that Cloudflare’s decisions are capricious and arbitrary rather than carefully reasoned. If Cloudflare is confident its customers, shareholders, and society more generally will support its reasoning, EFA sees little risk in Cloudflare doing so.
“Cloudflare is free to choose what it wants its brand to be known for. It must also accept the consequences of making that choice,” Warren said.
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