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<h4 class="meta"><a moz-do-not-send="true"
href="http://www.cjr.org/the_news_frontier/">The News Frontier</a>
— December 3, 2010 10:20 AM</h4>
<h3 class="title">Why Amazon Caved, and What It Means for the Rest
of Us</h3>
<p class="subhead">A Q&A with Ethan Zuckerman</p>
<p class="attribution">By <a moz-do-not-send="true"
href="http://www.cjr.org/author/lauren-kirchner-1/">Lauren
Kirchner</a></p>
<p>Amazon Web Services dropped WikiLeaks material from its servers
on Tuesday, a move that is widely assumed to be a direct response
to pressure from the Senate Homeland Security Committee. A <a
moz-do-not-send="true"
href="http://aws.amazon.com/message/65348/" target="_blank">statement</a>
from Amazon disputed that, stating that they kicked WikiLeaks off
for violating the terms of service: “For example, our terms of
service state that ‘you represent and warrant that you own or
otherwise control all of the rights to the content… that use of
the content you supply does not violate this policy and will not
cause injury to any person or entity.’”</p>
<p>It’s not the first time the company has pulled something like
this. Just <a moz-do-not-send="true"
href="http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html"
target="_blank">last year</a>, Amazon “remotely deleted” the
e-editions of two books that customers had already downloaded to
their Kindle readers, after it was discovered that the books’
seller did not have the rights to them. (And just their luck: the
public relations headache that resulted from the deletion was no
doubt amplified by the fact that the two books in question
happened to be by George Orwell.) As Gawker’s Ryan Tate notes,
Amazon’s policy of which content partners it will protect, and
when, and why, is <a moz-do-not-send="true"
href="http://beta.gawker.com/#%215703654/amazoncom-evicts-wikileaks-whos-next"
target="_blank">inconsistent and unpredictable</a>, to say the
least.</p>
<p>TechPresident’s Micah Sifry <a moz-do-not-send="true"
href="http://techpresident.com/blog-entry/liebermans-message-tech-companies-stay-away-wikileaks"
target="_blank">reported Wednesday</a> that, according to the
Senate Homeland Security Committee spokesperson Leslie Phillips,
the committee has not contacted any other tech companies whose
services WikiLeaks has utilized, like Twitter or Facebook.
However, Phillips added, “Senator Lieberman hopes that what has
transpired with Amazon will send a message to other companies.”</p>
<p>At least one other company got that “message” loud and clear.
Open-source data visualization program Tableau Public also removed
WikiLeaks-published visualizations from its site, a decision which
a statement <a moz-do-not-send="true"
href="http://www.tableausoftware.com/blog/why-we-removed-wikileaks-visualizations"
target="_blank">on the Tableau website</a> acknowledges was made
in response to the public request by Lieberman to do so.</p>
<p>So what does that mean for the rest of us? CJR assistant editor
Lauren Kirchner spoke with Ethan Zuckerman, researcher for the <a
moz-do-not-send="true" href="http://cyber.law.harvard.edu/"
target="_blank">Berkman Center for Internet and Society</a>—who
has <a moz-do-not-send="true"
href="http://www.ethanzuckerman.com/blog/2010/10/01/public-spaces-private-infrastructure-open-video-conference/"
target="_blank">written</a> <a moz-do-not-send="true"
href="http://www.ethanzuckerman.com/blog/2010/12/01/if-amazon-has-silenced-wikileaks/"
target="_blank">about</a> the tricky intersection of public
space (the Internet) and private infrastructure (service
providers)—about the broader implications of this news.</p>
<p><b>Why do you think WikiLeaks chose Amazon servers in the first
place?</b></p>
<p>My guess is that it’s a very easy way to buy a lot of server
capacity really fast. I mean, WikiLeaks was facing two things at
the same time: they were under tremendous load, probably in the
neighborhood of ten to fifteen gigabits per second of traffic, and
at the same time they were experiencing a DDos [<a
moz-do-not-send="true"
href="http://en.wikipedia.org/wiki/Denial-of-service_attack"
target="_blank">distributed denial-of-service</a>] attack of two
to four gigabits per second the first time around, and about ten
the second time around. It’s a pretty common tactic when you’re
under DDoS to try to get onto a pretty big server farm. If you’re
both trying to serve an enormous amount of traffic and cope with
DDos, Amazon makes very good sense, actually. You’re going to pay
for it, but I don’t think that was their big constraint; their big
constraint was trying to stay up in the face of all the interest
in the documents.</p>
<p><b>To what extent is a company like Amazon legally responsible
for documents it hosts?</b></p>
<p>That is an incredibly complicated question. Everything has to go
under the I Am Not a Lawyer disclaimer here. Essentially, there
are real questions about what the legal liability is, in dealing
with any of the WikiLeaks material. Different lawyers might answer
that question very differently. Generally speaking, though, there
are a good number of protections of internet service providers
against things like copyright infringement, through things like
the DMCA [<a moz-do-not-send="true"
href="http://en.wikipedia.org/wiki/DMCA" target="_blank">Digital
Millennium Copyright Act</a> of 1998], which basically says, as
long as you follow this process correctly, you’re not going to be
held liable for contributory copyright infringement. But to the
best of my knowledge, no one’s put anything together essentially
saying, here’s the policy you should go through if you are alerted
that you are holding government secrets. I think where I and
Rebecca [<a moz-do-not-send="true"
href="http://www.cnn.com/2010/OPINION/12/02/mackinnon.wikileaks.amazon/"
target="_blank">MacKinnon</a>] and others have criticized
Amazon’s move is that it’s not clear that they actually received
any legal notice; it sounds like what it amounted to was
essentially just political pressure.</p>
<p><b>I know this is just conjecture here, but if Amazon had pushed
back against the Senate Homeland Security Committee, do you
think the Committee would have threatened legal action? What’s
the nature of the threat there?</b></p>
<p>The interesting thing about it is, the actual cables, the actual
data in question, wasn’t being distributed on Amazon servers.
That’s being hosted on a peer-to-peer network, so what Amazon was
distributing was basically the index page: ‘here’s what we have,
here’s the link to the torrent files.’ So the truth is, you’d have
a hard time getting an injunction saying that Amazon was
contributing to espionage or to the dissemination of stolen goods,
because in fact, all they were really doing was hosting the HTML
page that said, here’s how to go get this on bit torrent. As far
as we can tell, no one did take legal action to force Amazon’s
hand; it just responded to pressure. All of that, to me, makes it
look pretty egregious, and should raise some questions for anyone
who’s a customer of Amazon’s web services.</p>
<p><b>When WikiLeaks got the boot from Amazon, they <a
moz-do-not-send="true"
href="http://twitter.com/#%21/wikileaks/status/10073870316863488"
target="_blank">wrote on Twitter</a>, “If Amazon is so
uncomfortable with the First Amendment, they should get out of
the business of selling books.” Do you consider this a First
Amendment issue?</b></p>
<p>The First Amendment is what everyone loves invoking. But of
course the First Amendment begins with the words “Congress shall
make no law.” And I didn’t see Congress passing any legislation
here. Here’s the thing. Amazon is perfectly, legally justified in
kicking customers off its service for any reason. They do have to
realize that there are enormous PR implications when they do so.
What Amazon is asserting here is that they are willing to remove
content based on political pressure, or based on the perception of
the offensiveness of that content. </p>
<p>What’s really hard about this is that we perceive the web to be a
public space, a place where you should be able to go and set up
your soapbox and say whatever you want to say to the world. The
truth is, the web is almost entirely privately held. So what
happens here is that we have a normative understanding that we
should treat this like public space—that you should have rights to
speak, that no one should constrain your rights—but then you
discover that, basically, you’re holding a political rally in a
shopping mall. This is commercial speech, controlled by commercial
rules. My sense is that companies try really, really hard not to
assert their corporate imperatives, and to say, ‘we’re going to
silent speech,’ because that makes people really uncomfortable.
But in this case, I think Amazon probably did a mental calculation
and said, ‘if we don’t do this, we’re going to end up the subject
of a boycott on Fox News, and that’s coming right before the
Christmas season, we can’t afford that.’ I have no way of
justifying that statement; that’s a speculation. But I understand
why they might be concerned about this. </p>
<p>What I actually think we might want to do, on a policy
standpoint, is to try to obligate Internet service providers to
protect speech in a way that recognizes that it functions as
public speech. If there were a way for Amazon to say, ‘actually,
we can’t remove this, these people have a right to speak unless
someone provides an injunction to prove that this is illegal,’
that would save them from being the subject of this CJR article at
the moment.</p>
<p><b>There’s definitely an inherent compromise at play here. At
CJR, for instance, we occasionally upload videos to our site,
and for that we use YouTube or Vimeo. The great thing about
those services, of course, is that they’re free and easy to use.
But the downside is we don’t have control then over that
content, and who might have access to it, who might erase it,
etcetera, because those companies don’t have an obligation to
us, to protect our material that we’ve uploaded. Do you think
that media organizations—and everyone—should be more aware of
this kind of compromise? I realize that’s a pretty leading
question at this point….</b></p>
<p>You’re leading the question, but it’s a place I’m happy to be
led. I wrote a piece in October called <a moz-do-not-send="true"
href="http://www.ethanzuckerman.com/blog/2010/10/01/public-spaces-private-infrastructure-open-video-conference/"
target="_blank">“Public Space, Private Infrastructure”</a> based
on a talk I gave at the Open Video Conference, in which I talked
about what you’re getting at. I talked about a friend of mine,
Wael Abbas, an Egyptian activist who has been responsible for
posting more than 200 videos that expose the police brutality and
abuse in Egypt on YouTube. At one point, YouTube reacted and
pulled them all down. What I said was, ‘I know you all are
expecting me to say, YouTube is evil, don’t ever use it’; but
actually what I said was that he was right to use YouTube. The
reason being, his blog is under a DDoS attack all the time. If he
tried to host his own videos, he’d never manage to keep his blog
up. Just the infrastructure required to make those videos
accessible to the world, and to protect them from attack,
basically requires you to crouch under a big rock. YouTube is one
of the biggest rocks out there; it makes perfect sense that you’d
want to keep your speech there. </p>
<p>However, you have to realize that you’re then dependent on that
organization. So you need to choose organizations that have a good
track record of protecting people’s rights. YouTube actually does;
Facebook, for instance, doesn’t. We’re starting to sort of get a
sense for who is better and worse at this. Ideally you’d like to
use an organization that has someone who’s dedicated to human
rights issues, and whom you can contact if there is a human rights
violation related to a takedown of your stuff. </p>
<p>The truth is, if you decide to go it alone, do it yourself, you
might find yourself in the situation that my friends recently
found themselves in, in Zimbabwe. They run a leading human rights
site, and they had purchased hosting by Bluehost, which is a
hosting provider. Bluehost woke up one day and said, we shouldn’t
be providing services to people in Zimbabwe. Basically it was
based on a terrible misinterpretation of U.S. trade sanctions,
which are against Bob Mugabe, not against everyone in the country.
But they removed the site. Unless you have your own <a
moz-do-not-send="true"
href="http://en.wikipedia.org/wiki/Digital_Signal_3"
target="_blank">T3</a> running to your own server, the Internet
is privately held. And at some point, you’re going to run into a
corporation, and that corporation’s decisions determine whether
you stay online or not. And that is troublesome. </p>
<p><b>In a way, this reminds me of the warrantless wiretapping
controversy. Americans tend to think of phone calls as
private—or they used to, anyway—but apparently phone companies
can make secret deals with the government to let them listen in
whenever they want, and do so without telling their customers.
That came as a shock to most people.</b></p>
<p>But at least that’s the <i>government</i>, right? As absurd and
horrible as all of that is, and was, the Amazon situation in some
ways is even worse. This wasn’t a government decision, this was a
corporate decision. If the U.S. government had somehow managed to
get an injunction for some court system ordering Amazon to take
this down, I would then be asking questions about whether that
moved correctly through the legal channels. But what happened
here, instead, is that a powerful senator called up Amazon and
said, “This is terrible, do the right thing,” and they caved. That
should send a message to anyone who is working with Amazon, that
Amazon might make the decision to stop providing you services
based on your content, or based on a complaint. That’s worrisome.</p>
<p><b>You said that people should be choosing their service
providers carefully, based on the companies’ human rights
history, or a person on staff who is dedicated to those types of
issues. But is that information that people typically have
access to?</b> </p>
<p>I think that it’s information that we’re only going to get
through better press coverage of this. I think this is a new issue
for most people. I think that most people just haven’t thought
through this at all. And when people respond to something like
WikiLeaks getting cut off of Amazon by saying, ‘This is a First
Amendment issue,’ it shows you how little people actually know
about what’s going on.</p>
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