In this article, I’m going to discuss some ways in which users can potentially take back some power when using (self-hosting) federated social networks such as Mastodon. These ideas might best help activists, journalists, or hackers publishing stuff.
I am not a lawyer. I’ve talked to a lot of them, but these ideas should be thought about carefully with your lawyer. All of this is based on my first-hand experiences operating Emerald Onion (in the United States), but most ideas are adaptable, so keep an open mind.
I can’t be as specific as I’d like to in this first section because I’m being censored from my own government not to. On a date after May 2019 (after Emerald Onion published its first update to its Transparency Report), but before November 2022 (before Emerald Onion published its most recent report), Emerald Onion was served a grand jury subpoena for user data along with our first gag order.
It doesn’t matter that Emerald Onion publishes [censored]. It doesn’t matter that well-informed government agencies should know that Tor [censored]. I am being prevented from using my First Amendment rights simply because a law enforcement agency has a process, and I am now part of it.
One of the issues defending anonymity on the internet is that it is built upon surveillance systems and control systems. The fediverse, be it ActivityPub or Mastodon, allows users to have more control, but it doesn’t mean they have total control. If it hasn’t happened already, a Mastodon admin is going to be served a subpoena or warrant of some kind and they are required to respond. So how do you prepare for that next act?
You must use public control systems for your defensive advantage. For years leading up to Emerald Onion’s founding, and to this day, I think about ways in which Emerald Onion could be structured to best defend the user. It’s one reason why we’re a public charity, why we have our own IP addresses that aren’t leased from an ISP, and why we have a Transparency Report.
Operating a social network is not a trival task. Adversaries come in all shapes and sizes, it’s not all going to come from the government. Private entities have lawyers. Please understand User Generated Content and the Fediverse: A Legal Primer.
Defend the User
Form a corporation. Does it need to be a federally-recognized 501(c)(3)? No, but there are benefits to that. You need liability mitigations. You need business insurances. You need legal and operational structure within the State in which you operate. You must be transparent and honest within your own government systems for what you’re doing (supporting public-benefit social networks). You need a business bank account and a budget.
Your organizational and legal structure needs to be preemptively made in a way that decision makers must all be informed of legitimate legal demands.
For example: Emerald Onion is a Washington state nonprofit corporation. Washington requires at least three directors. We made those same directors the Board of Directors to stay lean. We’re a “flat” organization where one person gets one vote on major decisions. The Board of Directors must be all informed, along with our legal counsel, about legal demands. That’s written into the Articles of Incorporation with the State. That’s what a small corporation that doesn’t have its own legal department must do. So, use it against the system. As painful as it might become, every user of your small Mastodon instance needs to be a legal decision maker for the corporation because then it’s required (by law) that they are informed of all legal demands that are mailed or emailed to the organization. This way, no one user of your Mastodon instance can be subject to secret data sharing or surveillance.
Does that mean, when this organization receives a legal demand, that a user should delete user data? Absolutely not, that would be illegal. You need to do exactly what the legitimate legal demand is. This preemptive structuring is important because it empowers the user, as part of the organization, to respond with the help of a lawyer. It will help the targeted user be supported in meaningful ways, especially emotional.