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EFF: Online Speech is Only as Strong as the Weakest Intermediary (eff.org)
151 points by fcurella on Dec 4, 2010 | hide | past | web | favorite | 25 comments

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.

You've laid out the case for why we cannot rely on an amoral legal corporate entity to take up a principled fight for our rights (if it doesn't want to). But the point of the article is that the government is using this as a loophole to get around it's constitutional restriction on censoring speech.

The question then is, how can we maintain our speech rights when the government is using corporations as proxies for it's censorship? In the AT&T wiretapping case from a couple years ago it became clear that even when the corporation is engaging in criminal activity at the behest of the government, the government can just turn around and grant it retroactive immunity. At this point it seems that there is nothing the government cannot do as we continue our slide towards authoritarianism.

> 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.

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.

I think there's a good argument that an enlightened media company would find it in its long-term interest to fight for the first amendment. Establishing the legal right to publish possibly controversial content allows them to do business without operating under a legal cloud.

However, based on Amazon's message [1] they don't seem to consider this a good test case.

[1] http://aws.amazon.com/message/65348/

Good summary of all the incentives Amazon had not to stand up for free speech or their customer's rights by waiting for a court order. Of course there are arguments both ways ...

> I know many in the HN community are outraged over their actions

I'm wouldn't say I'm outraged. I just think it's a great chance to show Amazon, and all the other companies caught in this situation, that there's also a big potential cost of not standing up.

The cost imposed in dealing with (and maybe falling to) a major concerted denial of service attack should also be included -- if Amazon went down for a single hour during holiday season (or even was slower in responding to customer queries), it would cost Amazon a lot more than they could earn in money and goodwill from wikileaks.

Why would the US even have jurisdiction in this case? The act happened outside the US, did it not?

"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…."

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.

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

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.

It doesn't matter whether the pressure is explicit or not. If there appears to be pressure, and the company appears to act in response, it sets a precedent and acts as social proof for future actions. It becomes easier for the next company to do what appears to be "expected of them" when the government has qualms about the business they're doing, not even if they expect reprisals, but simply because that's what others do.

It is the perception of it being true that is truly damaging, regardless of the facts. As the article mentions at the end, it "Other Internet intermediaries should now expect to receive a phone call when some other member of Congress is unhappy with speech they are hosting. After all, it worked on Amazon."

If Amazon had just kept the site up, OR if there was no call to their offices about it, and they removed WikiLeaks on their own, the perception would be different. A more independent Amazon and a world where US companies can make their own legal decisions about content without Gov't interference or coercion.

Now the perception is someone as big as Amazon can get scared by a phone call, and no place is safe to put a site that might tick off a gov't official, and they get ticked off at a LOT of stuff.

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.

“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.

I think it misses the main point as well. Large hosting companies are getting more wary of hosting controversial content of any kind. I don't think Rackspace killed the Quran-burning site because of government pressure, for example; and that situation seems fairly similar to this one. It might be that in this case the reason it was "controversial content" was pressure from the government, but it's not clear to me that Amazon wouldn't have done the same thing for different kinds of controversial content where the pressure came from, say, Oprah, rather than the government.

What if anything to do about that situation is trickier, which I guess is one reason for the EFF to frame it the other way. If indeed it was explicitly government pressure behind the scenes that caused Amazon's decision, then the analysis isn't nearly as tricky, because it's just government censorship, so what the EFF should do about it is obvious (oppose censorship, like they always do).

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.

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

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!'

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.

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.

In English, you can verb anything.

For what it's worth, I first heard that term approximately 15 years ago.

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).

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