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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

by 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.

jdp23 16y ago
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.
skybrian 16y ago
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/ http://aws.amazon.com/message/65348/
tntr 16y ago
> 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.

by grellas 16y ago

jdp23 16y ago

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.

skybrian 16y ago

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/ http://aws.amazon.com/message/65348/

tntr 16y ago

> 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.