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EFF: Online Speech is Only as Strong as the Weakest Intermediary

151 points by fcurella 16y ago

jdp23 16y ago
"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…."
rbarooah 16y ago
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.
- _delirium 16y ago
  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).
- mickdarling 16y ago
  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.
- skepticallama 16y ago
  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 16y ago
    “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.
- barrkel 16y ago
  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.
Grinnmarr 16y ago
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 16y ago
  What is this "whining" if not an act in our own self-interest? :)
  - Grinnmarr 16y ago
    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!'
grellas 16y ago
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/ 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.
alexqgb 16y ago
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.
- Estragon 16y ago
  For what it's worth, I first heard that term approximately 15 years ago.
- rbanffy 16y ago
  In English, you can verb anything.
angrycoder 16y ago
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 16y ago
  They may like the outcome of this particular discussion a lot less than the worst fall-out from the leaks though.
fooandbarify 16y ago
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.
piguy314 16y ago
Amazon should have waited for a court order or at the very LEAST a lawsuit before killing the site. My cursory analysis of the legal implications seems to indicate they would be protected by Section 230 of The Communications Decency Act (http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act http://en.wikipedia.org/wiki/Section_230_of_the_Communicatio...) but I may have missed something. Maybe someone with more legal expertise could chime in.
dnsworks 16y 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).

151 points by fcurella 16y ago

jdp23 16y ago

"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…."

rbarooah 16y ago

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.

_delirium 16y ago
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).
mickdarling 16y ago
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.
skepticallama 16y ago
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 16y ago
  “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.
barrkel 16y ago
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.

Grinnmarr 16y ago

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 16y ago
What is this "whining" if not an act in our own self-interest? :)
- Grinnmarr 16y ago
  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!'

grellas 16y ago

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/ 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.

alexqgb 16y ago

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.

Estragon 16y ago
For what it's worth, I first heard that term approximately 15 years ago.
rbanffy 16y ago
In English, you can verb anything.

angrycoder 16y ago

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 16y ago
They may like the outcome of this particular discussion a lot less than the worst fall-out from the leaks though.

fooandbarify 16y ago

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.

piguy314 16y ago

Amazon should have waited for a court order or at the very LEAST a lawsuit before killing the site. My cursory analysis of the legal implications seems to indicate they would be protected by Section 230 of The Communications Decency Act (http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act http://en.wikipedia.org/wiki/Section_230_of_the_Communicatio...) but I may have missed something. Maybe someone with more legal expertise could chime in.

dnsworks 16y 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).