[governance] Why Amazon caved, and what it means for Rest of us - columbia journalism review

[Riaz K Tayob]

        The News Frontier <http://www.cjr.org/the_news_frontier/> ---
        December 3, 2010 10:20 AM


      Why Amazon Caved, and What It Means for the Rest of Us

A Q&A with Ethan Zuckerman

By Lauren Kirchner <http://www.cjr.org/author/lauren-kirchner-1/>

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 statement 
<http://aws.amazon.com/message/65348/> 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.'"

It's not the first time the company has pulled something like this. Just 
last year 
<http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html>, 
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 
inconsistent and unpredictable 
<http://beta.gawker.com/#%215703654/amazoncom-evicts-wikileaks-whos-next>, 
to say the least.

TechPresident's Micah Sifry reported Wednesday 
<http://techpresident.com/blog-entry/liebermans-message-tech-companies-stay-away-wikileaks> 
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."

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 on the Tableau website 
<http://www.tableausoftware.com/blog/why-we-removed-wikileaks-visualizations> 
acknowledges was made in response to the public request by Lieberman to 
do so.

So what does that mean for the rest of us? CJR assistant editor Lauren 
Kirchner spoke with Ethan Zuckerman, researcher for the Berkman Center 
for Internet and Society <http://cyber.law.harvard.edu/>---who has 
written 
<http://www.ethanzuckerman.com/blog/2010/10/01/public-spaces-private-infrastructure-open-video-conference/> 
about 
<http://www.ethanzuckerman.com/blog/2010/12/01/if-amazon-has-silenced-wikileaks/> 
the tricky intersection of public space (the Internet) and private 
infrastructure (service providers)---about the broader implications of 
this news.

*Why do you think WikiLeaks chose Amazon servers in the first place?*

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 [distributed denial-of-service 
<http://en.wikipedia.org/wiki/Denial-of-service_attack>] 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.

*To what extent is a company like Amazon legally responsible for 
documents it hosts?*

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 [Digital Millennium Copyright 
Act <http://en.wikipedia.org/wiki/DMCA> 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 [MacKinnon 
<http://www.cnn.com/2010/OPINION/12/02/mackinnon.wikileaks.amazon/>] 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.

*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?*

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.

*When WikiLeaks got the boot from Amazon, they wrote on Twitter 
<http://twitter.com/#%21/wikileaks/status/10073870316863488>, "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?*

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.

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.

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.

*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....*

You're leading the question, but it's a place I'm happy to be led. I 
wrote a piece in October called "Public Space, Private Infrastructure" 
<http://www.ethanzuckerman.com/blog/2010/10/01/public-spaces-private-infrastructure-open-video-conference/> 
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.

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.

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 T3 
<http://en.wikipedia.org/wiki/Digital_Signal_3> 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.

*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.*

But at least that's the /government/, 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.

*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?*

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.

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