First Half 2019 Transparency Report and an Update on a Warrant Canary
Today, we are releasing Cloudflare’s transparency report for the first half of 2019. We recognize the importance of keeping the reports current, but It’s taken us a little longer than usual to put it together. We have a few notable updates.
Pulling a warrant canary
Since we issued our very first transparency report in 2014, we’ve maintained a number of commitments – known as warrant canaries – about what actions we will take and how we will respond to certain types of law enforcement requests. We supplemented those initial commitments earlier this year, so that our current warrant canaries state that Cloudflare has never:
These commitments serve as a statement of values to remind us what is important to us as a company, to convey not only what we do, but what we believe we should do. For us to maintain these commitments. we have to believe not only that we’ve met them in the past, but that we can continue to meet them.
Unfortunately, there is one warrant canary that no longer meets the test for remaining on our website. After Cloudlfare terminated the Daily Stormer’s service in 2017, Matthew observed:
“We’re going to have a long debate internally about whether we need to remove the bullet about not terminating a customer due to political pressure. It’s powerful to be able to say you’ve never done something. And, after today, make no mistake, it will be a little bit harder for us to argue against a government somewhere pressuring us into taking down a site they don’t like.”
We addressed this issue in our subsequent transparency reports by retaining the statement, but adding an asterisk identifying the Daily Stormer debate and the criticism that we had received in the wake of our decision to terminate services. Our goal was to signal that we remained committed to the principle that we should not terminate a customer due to political pressure, while not ignoring the termination. We also sought to be public about the termination and our reasons for the decision, ensuring that it would not go unnoticed.
Although that termination sparked significant debate about whether infrastructure companies making decisions about what content should remain online, we haven’t yet seen politically accountable actors put forth real alternatives to address deeply troubling content and behavior online. Since that time, we’ve seen even more real world consequences from the vitriol and hateful content spread online, from the screeds posted in connection with the terror attacks in Christchurch, Poway and El Paso to the posting of video glorifying those attacks. Indeed, in the absence of true public policy initiatives to address those concerns, the pressure on tech companies — even deep Internet infrastructure companies like Cloudflare — to make judgments about what stays online has only increased.
In August 2019, Cloudflare terminated service to 8chan based on their failure to moderate their hate-filled platform in a way that inspired murderous acts. Although we don’t think removing cybersecurity services to force a site offline is the right public policy approach to the hate festering online, a site’s failure to take responsibility to prevent or mitigate the harm caused by its platform leaves service providers like us with few choices. We’ve come to recognize that the prolonged and persistent lawlessness of others might require action by those further down the technical stack. Although we’d prefer that governments recognize that need, and build mechanisms for due process, if they fail to act, infrastructure companies may be required to take action to prevent harm.
And that brings us back to our warrant canary. If we believe we might have an obligation to terminate customers, even in a limited number of cases, retaining a commitment that we will never terminate a customer “due to political pressure” is untenable. We could, in theory, argue that terminating a lawless customer like 8chan was not a termination “due to political pressure.” But that seems wrong. We shouldn’t be parsing specific words of our commitments to explain to people why we don’t believe we’ve violated the standard.
We remain committed to the principle that providing cybersecurity services to everyone, regardless of content, makes the Internet a better place. Although we’re removing the warrant canary from our website, we believe that to earn and maintain our users’ trust, we must be transparent about the actions we take. We therefore commit to reporting on any action that we take to terminate a user that could be viewed as a termination “due to political pressure.”
UK/US Cloud agreement
As we’ve described previously, governments have been working to find ways to improve law enforcement access to digital evidence across borders. Those efforts resulted in a new U.S. law, the Clarifying Lawful Overseas Use of Data (CLOUD) Act, premised on the idea that law enforcement around the world should be able to get access to electronic content related to their citizens when conducting law enforcement investigations, wherever that data is stored, as long as they are bound by sufficient procedural safeguards to ensure due process.
On October 3, 2019, the US and UK signed the first Executive Agreement under this law. According to the requirements of U.S. law, that Agreement will go into effect in 180 days, in March 2020, unless Congress takes action to block it. There is an ongoing debate as to whether the agreement includes sufficient due process and privacy protections. We’re going to take a wait and see approach, and will closely monitor any requests we receive after the agreement goes into effect.
For the time being, Cloudflare intends to comply with appropriately scoped and targeted requests for data from UK law enforcement, provided that those requests are consistent with the law and international human rights standards. Information about the legal requests that Cloudflare receives from non-U.S. governments pursuant to the CLOUD Act will be included in future transparency reports.