
EFF: Online Speech is Only as Strong as the Weakest Intermediary - fcurella
https://www.eff.org/deeplinks/2010/12/amazon-and-wikileaks-first-amendment-only-strong
======
grellas
This is not a happy situation for the intermediary service providers for a
variety of reasons:

1\. They are not in business to be martyrs for a cause or to take unnecessary
risks unrelated to their core business goals.

2\. This piece correctly points out that the media cannot be subjected to
prior restraints in publishing protectable speech. However, the 1971 _New York
Times_ (Pentagon Papers) case left open the obvious possibility that they
might be prosecuted criminally after-the-fact and the law is such today that
the sort of activity engaged in by WikiLeaks may readily be punishable as a
crime (the thorny issues associated with this are nicely discussed in this
even-handed piece from Slate: <http://www.slate.com/id/2276592/>).

3\. The furor surrounding WikiLeaks does not begin and end with one senator.
The Justice Department, the Pentagon, and the Obama administration generally
have indicated that they desire to find a way to punish this conduct if
possible and are actively investigating ways to do so. This is not to mention
that the overwhelming majority of politicians of all stripes have condemned
it. Now, whether they are right or wrong, protectors of the country or
boneheads out to suppress civil liberties, this has the _feel_ of a lynching
about to happen. And even those who vigorously support WikiLeaks must concur
that they are operating in and about the edges of the law. Yes, there may be
no violation of the 1917 Espionage Act occurring because the motives of Mr.
Assange do not meet the statutory test for a criminal act, and, yes, the Act
may not technically apply to the activity here, and, yes, the Act may be
unconstitutional if tested all the way up to the Supreme Court in this sort of
case, . . . _but_ why would you want your company to be part of the _test
case_? (My guess is that many of the principals behind Amazon, PayPal, etc.
actually find themselves in sympathy with the spirit of WikiLeaks but that
they are not allowing any such sympathies to color their business decisions).
I would sum this point up by saying that mainstream companies do _not_ want to
find themselves aligned with high-profile situations skirting the edge of the
law. Call it "turning tail" but I don't know very many responsible executives
who would decide the issue differently (strictly from a _business_ point of
view).

4\. Regardless of business factors, it does look bad for these businesses to
be caving to political pressure. They can technically justify their actions on
grounds that the WikiLeaks activities may violate their terms of service
(whether or not they are in fact criminal, if the highest criminal enforcement
authorities in the nation are on a concerted campaign to determine that they
are, the service provider is in no position to second guess this). In spite of
this, the appearance _is_ one of caving on a point where the provider could,
if it elected, choose to stand its ground in favor of principle. Thus,
whatever the reality, it certainly looks cowardly.

Ergo, a no-win situation for these service providers. I know many in the HN
community are outraged over their actions but I think the case is more complex
than typically assumed.

~~~
tntr
> _I would sum this point up by saying that mainstream companies do not want
> to find themselves aligned with high-profile situations skirting the edge of
> the law._

That's what I thought until YouTube was bought by Google. With all the furor
over music and movies and Napster and all the rest, I wouldn't have expected
YouTube to last 5 minutes considering the massive amount of copyrighted
content that they hosted.

Clearly companies have no problem skirting the law, and in fact any number of
large companies do that regularly with impunity (e.g. Monsanto and the over 50
Superfund sites it is responsible for contaminating; AT&T and its assistance
with warrantless wiretapping; BP and the spill aftermath).

Large corporations skirt the law and/or flip off the government all the time,
even in cases of well-settled legislation.

Here we have a situation which is FAR from settled -- the 1917 Espionage Act
and its amendments with the 1918 Sedition Act which were upheld at the time
would never have passed muster in the face of later recognitions of First
Amendment protections. The Pentagon Papers case supposedly "left the question
open", but with 9 separate opinions filed, the government (having failed with
prior restraint) apparently didn't feel at all confident about pursuing
criminal, after-the-fact penalties, despite having decades to do so.

It's quite clear that this has nothing to do with law; it has to do with
unofficial pressure -- _extrajudicial_ pressure coming from many quarters.
It's as if to say, "Poisoning the hoi polloi is one thing, but you messed with
OUR stuff, and now it's _personal_."

I feel for Amazon and even the evil PayPal in this case, because how are you
supposed to run a business when the government can send in its bogeymen to
make you comply without even bothering with the courts? It makes for an extra
set of _unofficial laws_ to bully you with -- bully, because clearly it
doesn't actually achieve the purported aim (the horse has left the barn) but
is simply a show of force to make everyone kowtow.

Kind of like Mean Girls. The Queen Bee was shown up, and she can't undo it but
she can take it out on her clique and make them not talk about it.

~~~
quanticle
There's also a question of profit. Monsanto, for example, probably saved
millions, if not billions, by skirting the edges of EPA regulations. To use
another example, if the Macondo well had come online, BP would have saved
hundreds of millions by skimping on safety measures. However, there's not
enough profit to justify the risk for Amazon, and they're cutting WikiLeaks
off for that reason alone.

In business its not about the law - that's what high priced law firms are for.
Its about profit, and no business will fight the good fight if there's no
money at the end. Just look at Google and Net Neutrality. As long as network
providers were refusing to negotiate, Google was raising holy hell about
network neutrality and traffic shaping. However, the moment some started to
negotiate, Google dropped its hard line and crafted a joint statement riddled
with exceptions and caveats.

Corporations are powerful but fickle allies. Take heart when they're fighting
on your side, but don't count on them to do so to the end. They'll drop you
and your cause the moment it becomes clear that there are other ways to secure
their profit.

------
jdp23
"a web hosting company isn’t the government. It’s a private actor and it
certainly can choose what to publish and what not to publish. Indeed, Amazon
has its own First Amendment right to do so. That makes it all the more
unfortunate that Amazon caved to unofficial government pressure to squelch
core political speech. Amazon had an opportunity to stand up for its
customer’s right to free expression. Instead, Amazon ran away with its tail
between its legs…."

------
angrycoder
I would say the US government is doing an awesome job of suppressing the
information contained in the leaks.

They have successfully steered the conversations regarding Wikileaks towards a
battle of ideals. The content of the leaks is almost a footnote in the
coverage I've seen and read, that applies doubly to Hacker News.

~~~
jacquesm
They may like the outcome of this particular discussion a lot less than the
worst fall-out from the leaks though.

------
rbarooah
Whilst I agree with the point they are trying to make, they article is argued
in a fallacious way that made me feel uncomfortable - they start off by
acknowledging that there is no way to know whether Amazon really caved because
of the call from Lieberman:

'While it's impossible to know whether or not Amazon's decision was directly
caused by the call from the senator's office, we do know that Lieberman has
proposed "anti-WikiLeaks legislation" and that he has a history of pushing for
online censorship in the name of "security."'

But then for the rest of the piece they make strong statements assuming that
it is true:

"That makes it all the more unfortunate that Amazon caved to unofficial
government pressure to squelch core political speech. Amazon had an
opportunity to stand up for its customer's right to free expression. Instead,
Amazon ran away with its tail between its legs."

I wish they'd found a more honest way to make their point than innuendo. They
could have at least kept it as a question for the reader to answer in their
own mind.

~~~
skepticallama
I have no doubt that political (and popular?) pressure played a role in
Amazon's decision. From a business standpoint it seems like a solid decision.
Hosting wikileaks gains little and could be quite costly in lawsuits, ddos,
loss of political standing and bad press.

Regardless this is a clear message that if you are going to publish something
controversial online, Amazon (and likely similar providers) are not the place
to do it.

Unfortunately the scope of what is controversial is quickly expanding and
already encompasses what some would consider speech vital to maintaining the
rights and freedoms granted to citizens of the US.

~~~
riobard
“Hosting wikileaks gains little and could be quite costly in lawsuits, ddos,
loss of political standing and bad press”

The whole point of singling out Amazon as a coward is to rebalance the cost
and gain. Some people are expecting business to have morales too (well yes
some don't and the topic is quite debatable).

Otherwise it will gradually end up with situations in some country (should be
obvious I assume) where any government official with sufficient power can make
a phone call to an Internet company to delete unwanted content, and the guy
receiving the call would be beaten to death if he dares to say no.

------
Grinnmarr
Bah. Amazon didn't cave to political pressure, it made a sound business
decision. While it may offend your politics this was about the bottom-line. It
isn't Jeff Bezos' job to make polical statements with other peoples money, he
has enough of his own for that. This isn't a privately held firm we are
talking about folks. I doubt Amazon's PR team had to give this more than 5
minutes thought before calling the board. Whining about Amazon not fighting
the fight is to either sorely misunderstand the nature of business OR a veiled
attempt to promote anti-capitalism rhetoric. Liberal Capitalism (or however
closely we approximated that during the last century) is in its death throes.
The revolution is upon us and the bastards are winning. But to whine about
Amazon acting in their own self interest? Wake up! As much as I love the
Amazonians (as they refer to themselves) and have had the pleasure of gracing
their halls on several occasions you need to realize that in the true scheme
of things Amazon and the Federal elite are on the same side in this war. And
it isn't the side many of you think you are on. But the power structure keeps
selling the dream and enough of the poor and down trodden keep buying it up.

If you want to attack Amazon's decision, then you must attack the forces and
structure behind it. If this was a game, Amazon made the right move. Don't
hate the player, hate the game. Please.

~~~
nileshtrivedi
What is this "whining" if not an act in our own self-interest? :)

~~~
Grinnmarr
Agreed. I don't like the politics of this "scandal" like many in this
community, but this IS a serious fight AND I believe the stakes are even
higher than many here on my side seem to think. It is how the battle is to be
fought that concerns me as victory is my goal. This editorial, with all due
respect to the EFF which I mostly support, is ultimately trite, pendantic, and
shallow despite casual appearance to the contrary. This isn't just about
freedom of speech. It is about putting a roof over our children's heads and
food in their bellies. "You've got to get mad. You've gotta say 'I'm a human
being God damn it, my life has value!'

------
fooandbarify
An interesting problem. Despite my objections to their actions (which I
spelled out in a different thread) I'm not really upset with Amazon. I will
probably not buy from them for a while, but I know that won't really affect
their bottom line and I partly just enjoy brick-and-mortar stores most of the
time anyway. I can't even necessarily say that I would act any different in
their shoes - business is business and a lot of the time that means every
person for themselves. In other words, I'm not _entirely_ idealistic and
naive. Still, it really sucks that potential government repercussions can
affect private businesses enough to circumvent the safeguards which documents
like the US Constitution are meant to provide.

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alexqgb
Somewhere in all this furor, I saw 'demagogued' used as a verb. As in "No,
don't say it like that - it'll get demagogued. Frame it like this instead..."
That was a first for me.

Initially, it seemed like an ugly development. But then I realized that it was
probably a good thing, since it means that a real problem is getting a proper
name. That's a critical step towards a viable solution.

~~~
rbanffy
In English, you can verb anything.

------
dnsworks
It seems to me that Amazon has set a dangerous legal precedence for the
hosting industry in general. Except for DMCA takedown notices, ISPs have been
able to uphold that they do not own their customers' content (the earliest big
case I can think about was when the Scientologists sued Netcom, and everybody
else in the world).

