A piece in USA Today describes how a number of Capitol Hill rioters are utilizing online fundraising platforms to raise funds to cover legal fees, only to find their accounts shut down. This is prompting an online discussion not only about when and how tech companies should shutter online accounts for those accused of illegal activity but also about what financial services should be available to those accused of a crime.

The piece seemingly conflates the crowdfunding of legal fees with “crowdfunding hate,” an argument that needs some unpacking.

The justification for banning right-wing extremists from using online platforms to raise funds for a legal defense is made from a concern that such donations will be used for activities that promote hate, violence, or racial intolerance. And yet, the determination of what constitutes such activities is meant to be left to online platforms and service providers. That is, the behavior that people are demanding that these companies regulate is not, in most cases, illegal. Without guidance from the law, the companies are left to make subjective decisions about who should be allowed to use their services—decisions that are increasingly informed by public pressure.

There is a long history of corporations denying services to a wide range of actors, and we’ve documented what happens when corporations are left to decide who is or isn’t worthy of raising funds. 

In 2010, WikiLeaks suffered an extra-legal financial blockade spurred on by unofficial government pressure, though they had not been charged with any crime in the United States. In other instances, online booksellers, fetish-oriented websites, and most recently, Pornhub, have fallen prey to the moral values of individual platforms and service providers.

In fact, those most often affected by the whims of payment processors are some of the most marginalized groups and individuals. Sex workers have reported being systematically redlined by PayPal, crowdfunding sites, and even Visa and MasterCard—even when attempting to use those services for ordinary transactions unrelated to their work.

Payment companies are also notoriously overbroad in their attempts to apply restrictions related to United States international sanctions, banning individuals for so much as referencing the name of a sanctioned country like Syria, Sudan, or Iran.

The Right to a Fair Trial

In the United States, every state operates what is called an “Interest on Lawyer Trust Account” (IOLTA) program. Lawyers are required to create a separate trust account to hold their clients’ funds, which then can be used to cover the cost of legal services. This money is held separately from the attorney’s own money. In fact, a common way individuals other than the defendant contribute money to someone’s legal defense is by contributing directly to the IOLTA account. In some circumstances, these accounts are pooled and the bank’s interest payments help support legal aid to the poor and to improve the justice system. But, IOLTA accounts are not ideal: the defendant must have already secured a lawyer before using that attorney’s IOLTA account.  Moreover, it can be complex to directly transfer money to the account, and attorneys may ask that money be sent through direct transfer using a routing number or by mailing a check.  For individuals who are still seeking legal aid, or for anyone who wants to set up online donations, crowdfunding platforms have filled a vital gap—creating an online fund that can then be sent to the IOLTA account once the attorney is retained. 

While it’s understandable that, in the wake of the Capitol Hill riot, people are grasping for ways to limit the spread of right-wing extremism, the demand that companies prevent individuals from raising funds for a legal defense is deeply troubling. Our adversarial judicial system is built on the idea that people—even guilty people—should have access to a fair trial with adequate representation. In a criminal case, that ideal is often elusive, with the government having nigh unlimited resources, especially for a high profile case, while most defendants have few resources at all.  

Demanding that companies deny individuals the ability to effectively raise funds for a defense attorney tilts the playing field from the start. People would be outraged if, for instance, protesters detained during last summer’s Black Lives Matter demonstrations were de-platformed by fundraising sites. But that’s precisely what can happen when these decisions are left to corporations with one eye on the bottom line.

Make no mistake: many of the Capitol Hill rioters violated the law, and will likely—and rightfully—face legal consequences for their actions. What was so reprehensible about the Capitol Hill riot was that it attempted to undermine one of the foundational pillars of our democracy: a fair and just election. But just as democratic elections are fundamental to our society, so is a functional and fair judicial system. When we erect barriers between a defendant and the ability to pay for adequate legal representation, we jeopardize that judicial system. And while many abhor the actions of the Capitol Hill rioters, we must remember that these systems will not only be used against people whose actions we find abhorrent. Indeed, whenever we analyze the censorship decisions of tech companies, we must remember that those most likely to suffer the consequences are those already marginalized in our society.

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