Opinions of Wikileaks in the wake of its publication of tens of thousands of classified US diplomatic cables certainly varies. Some have noted that it’s hard to claim the cables were terribly secret since 2-3 million government employees have clearance to see this level of “secret” document, and 500,000 of these people have access to the Secret Internet Protocol Network (SIPRnet) where the cables were stored. Others have pointed to the embarrassment and erosion of trust associated with their release as an obstacle to American diplomatic efforts.
No matter your opinion, one aspect of the swirl of stories emanating from the Wikileaks diplomacy scandal should trouble publishers and librarians alike — the fact that service providers like Amazon and PayPal are backing away from Wikileaks, invoking “terms of service” and “acceptable use policies” to justify their actions.
The power of the press can be dramatically limited when the power to the press is disconnected. Outside the newspaper industry, few publishers actually own their own printing presses. U.S. courts rarely exercise prior restraint (orders that prohibit publication), and most printers rely on their customers to shoulder the legal liability if there are disputes. But as Amazon’s silencing of Wikileaks demonstrates, the rules can change when media companies move on to the Internet, with its very different methods of publishing.
Amazon’s justification for revoking Wikileaks’ access to the Amazon Web Services (AWS) is that their terms of service state that anyone using AWS must have rights to the content posted there, and that the content posted “will not cause injury to any person or entity.”
Amazon has a conflict of interest as a cloud services provider, namely the importance of retaining the reputation of its retail store at all costs. AWS provides Amazon with a fraction of its revenues, so when the storefront might be smeared by a scandal at AWS, it’s clear how to resolve the conflict of interest — kick the offending content off AWS. As a retailer, Amazon has more at stake with its reputation as a safe, palatable place to shop. Becoming embroiled in a worldwide information scandal isn’t their cup of tea.
While the usual denials and accusations percolate, reports seem to zero-in on Joseph Lieberman (I-Connecticut), Chairman of the Homeland Security and Governmental Affairs Committee, as the person who applied pressure for Amazon to pull the plug on Wikileaks. Wikileaks ultimately had to do what you’d expect in the physical world — retreat to a site hosted in Switzerland. It seems political neutrality is also necessary on the Internet.
With Google, Apple, and Amazon dominating the digital information space as they do, we can expect more of this until digital media matures to the degree printed media has.
Clay Shirky, writing about the long-term balance of transparency and opacity necessary in a civil society, notes that pressuring Amazon and PayPal to invoke their terms of service is essentially a craven act on behalf of the government:
When authorities can’t get what they want by working within the law, the right answer is not to work outside the law. The right answer is that they can’t get what they want.
The cloud is a fickle medium, with restrictive and even capricious terms of service. Is there any journalism worth its salt that doesn’t somehow cause harm to “a person or entity”?
The same could be said for a good deal of medical research. Studies of drugs later found to have unanticipated side-effects in the long-term are potentially harmful, and cloud providers could assert such materials be removed under their terms of service.
The Scholarly Kitchen itself is hosted in the cloud, being on the public version of WordPress. What if we violated a term of service? Would WordPress be within its rights to shut us down? Or does the First Amendment protect WordPress as a provider? These matters of law are not settled.
Amazon isn’t the only provider dropping Wikileaks while asserting violations of terms of service. PayPal also dropped Wikileaks late last week, with a tersely worded statement on its blog:
PayPal has permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity. We’ve notified the account holder of this action.
Cloud computing and services like PayPal can provide publishers with cost-effective storage and technology solutions. However, until they are managed in a way that accommodates the realities of publishing — the controversies, the risks, the scandals, and the law — we shouldn’t trust commercial cloud services.