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Wikileaks and the hazards of “intermediary censorship”

By Index on Censorship / 3 December 2010


Private ownership of web hosting raises serious questions for free expression, says Jillian C York

WikiLeaks’ latest release is making its rounds in the media. Links to cablegate.wikileaks.org are circulating, posted on Twitter and Facebook, passed around in emails. After several releases from the whistleblowing organisation, we’ve begun to take for granted that the leaked information — at least what’s already online — will be accessible to us.

And yet, the forces that be, led by US Democratic Senator Joe Lieberman, are on a quest to limit our access. Earlier this week, after a call from Lieberman, Amazon — which had been hosting the site — booted WikiLeaks from its hosting service. Yesterday a small American company called Tableau took down visualisations based on WikiLeaks data, and Lieberman added WikiLeaks’ new host, Swedish company Bahnhof, to his hit list. Early this morning, hosting provider Everydns dropped Wikleaks, claiming it had to protect its other clients from attack. Wikileaks has subsequently relocated to a Swiss host.

As Rebecca MacKinnon points out, this isn’t the first time Lieberman has made such a call; in 2008, the Senator demanded removal of “content produced by Islamist terrorist organisations” from video-sharing site YouTube. The company refused to remove most content, its lawyer noting that it was covered by the First Amendment.

There is, of course, a precedent for content removal at government request as well…plenty of it, in fact. Earlier this year, Google made public government requests for data, as well as for content removal – in the United States, the latter came in at 128 for a six month-period. During the same period, the UK made 48 such requests.

These examples represent a broader trend, which Ethan Zuckerman has termed “intermediary censorship.” It isn’t always about national security, nor is it always at the behest of a government, but increasingly, American companies are removing protected speech from their servers.

Of course, these private companies have every right to set their own rules, by which users are expected to abide. Despite the calls from Lieberman, Amazon claims their terms of service were violated by WikiLeaks posting content to which they didn’t own the rights. Observers shouldn’t be too surprised: in another recent case, Amazon removed a book on paedophilia in response to public pressure. Webhost Rackspace removed the website of controversial Quran-burning pastor Terry Jones. And social networking sites like Facebook and YouTube regularly remove content that violate their terms of service.

Sometimes those removals are a result of attempts, however misguided, to abide by the law. In 2009, American webhost Bluehost cut off service from a Zimbabwean activist group in an attempt to abide by US export control laws; as it turned out, the hosting company was being overly cautious and reversed its decision. In a similar incident, LinkedIn blocked access to the entire country of Syria, a decision that was also reversed when the company learned they had over-complied.

Again, all of these companies were well within their rights — the question is, do they have a responsibility to uphold the principles of free speech? Should the role they play as part of the public sphere have an effect on how they police their customers?

Citizens around the world are increasingly dependent on privately-owned spaces for carrying public discourse. We read our news, engage in political debate, write blog posts. But the more dependent we become on online platforms to exercise our right to free speech, the worse we’ll feel it when the rug is swept out from under us.

Amazon’s confirmation that they removed WikiLeaks because of a terms of service violation — and not because of a government request — should alarm us all. Once companies start deciding for themselves who has violated the law, they are effectively taking that law into their own hands.

The fact of the matter is, it is neither cost-effective nor easy to host one’s own content, and so most of us are now bound to the rules and regulations of companies. As Rebecca MacKinnon writes: “The future of freedom in the Internet age may well depend on whether we the people can succeed in holding companies that now act as arbiters of the public discourse accountable to the public interest.”

If we want to uphold our right to free expression, the answer is clear: As the customers, we must make our voices heard to the companies that control our content. This means supporting initiatives that push for companies to create better policies for content regulation. This also means speaking loudly with our money, and taking our business to companies that respect the principles of free expression.

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21 Responses to Wikileaks and the hazards of “intermediary censorship”

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  8. Oliver Westcott

    15 January at 09:05

    As Brad says. It is the public sector (the government or … the state) that is underfire from Wikileaks. Wikileaks embodies the spirit of anarcho-capitalism. Furthermore Assange is a “proponent” of the free market.

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  11. Brad

    7 December at 03:04

    Yes, some private companies may censor, usually due to threats from the criminals that style themselves the “government,” but they really shouldn’t be blamed for this, as they are victims here. Many of these companies undoubtedly would have continued to host Wikileaks if it wasn’t for the threats they have received from the US government and its aligned gangs of criminals. In a true free market (that is an anarcho-capitalist society), any company that censored would lose money as they would lose business to competing sites. Also, it would be much easier to bring the criminals who are hacking Wikileaks to justice under anarcho-capitalism, as there would be courts other than the government’s court system which is looking the other way.

    What I find ironic is the way that the US government and its puppet regimes define “terrorism.” To them, a “terrorist” is anybody who is not a government who nonetheless behaves like a government (for example, Al-Qaeda). Unless you specifically define the actions of the US government as “not terrorism” by definition, it is impossible to come up with a definition of “terrorism” that doesn’t include the actions of the US government. Of course, the government also includes organizations like Wikileaks and even anarcho-capitalists like myself (of course, almost all anarcho-capitalists are Americans, as it is the most principled form of the indigenous American ideology of libertarianism) among its list of “terrorists” because of the threat posed to its power. This “terrorist” is a strong supporter of Wikileaks, although I think they should have published the whole truth instead of holding information back. If I knew the names of the collaborators with the crimes of “my” government in Afghanistan and Iraq, I would certainly publish those names with no regrets.

  12. stevenz

    7 December at 00:32

    If the information is public, does anyone actually own the “rights”? Shouldn’t anyone be able to publish public information?

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  18. Dylan Nickelson

    3 December at 23:55

    The central point of the article is correct. Amazon took WikiLeaks off its servers due to a breach of contract terms.

    On this logic, hosting contracts trump the first amendment.

    Luckily there are companies such as PeRiQuito (Pirate Bay and WikiLeaks host) whose terms of service permit clients to publish stolen information.

  19. Salil Tripathi

    3 December at 19:36

    Amazon’s decision rests on the fact that WikiLeaks didn’t own the data; it had acquired it from someone who had stolen it. Can one trade in stolen items? If the sale or dissemination of the stolen item serves a public purpose, who is to make that decision as to what constitutes public purpose?

    And tomorrow dissidents from China steal data from Chinese archives, scan the documents that show who took the decision to send tanks at Tiananmen Square in 1989 (or how Mao ignored the famine during the Great Leap Forward), and if the dissidents place those documents on Amazon’s servers, and then a Chinese legislator says the site should be closed because the data is stolen, how would Amazon react?

  20. Chris Marsden

    3 December at 16:14

    This has been true since the late 1980s – most companies and individuals reply on intermediaries and Notice and Take Down, in Europe under 2000/31/EC. Why should companies’ abuse of this surprise anyone? See Lessig (1999) Code.

  21. Vidyut

    3 December at 16:09

    How we mourn the missing once we realize its not there! As you said, we need to hold service providers accountable. Yet, how many people criticizing Amazon cancelled their packages with them? A pitiful few. There needs to be some serious dialogue around these things.

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