Amazon.com issued a statement today regarding its decision to stop hosting Wikileaks’ main site yesterday, claiming the organization’s site violated the Amazon Web Services terms of service and that the content was endangering peoples’ lives.
Interestingly, by this measure the company would not have hosted the Pentagon Papers The New York Times published in 1971.
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According to Amazon.com’s announcement:
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 clear that WikiLeaks doesn’t own or otherwise control all the rights to this classified content. Further, it is not credible that the extraordinary volume of 250,000 classified documents that WikiLeaks is publishing could have been carefully redacted in such a way as to ensure that they weren’t putting innocent people in jeopardy. Human rights organizations have in fact written to WikiLeaks asking them to exercise caution and not release the names or identities of human rights defenders who might be persecuted by their governments.
Although it’s clearly illegal for government employees to leak classified information, it’s less clear whether publishing that information once it’s been leaked is illegal. In 1971, the Nixon administration sought use the Espionage Act of 1917 to prevent The New York Times from publishing the Pentagon Papers. However, the U.S. Supreme Court decided in the case New York Times Co. v. United States that the U.S. government had not met the heavy standards required to justify prior restraint.
Attorney Floyd Abram, who represented the New York Times against the federal government in 1971, told NPR that Wikileaks may very well be in violation of the Espionage act:
Mr. ABRAMS: Well, yes, the espionage act can apply to WikiLeaks and I think that there’s a pretty good argument that it would apply to WikiLeaks. The language of the statute is very broad and it bars the unauthorized possession or control over basically classified information by outsiders, which they have reason to believe could be used to the injury of the United States.
Well, that’s obviously so broad that it can’t mean everything it says. So what the courts have done is to read into that, to attach onto it, what we call a scienter requirement – a requirement that you have to mean to do something bad, you know, not just participate in public debate, but to harm the United States in some ways. That’s something which could be argued.
MONTAGNE: And Julian Assange, who’s the head of WikiLeaks…
Mr. ABRAMS: Yeah.
MONTAGNE: …has suggested that that’s just what he’s trying to get.
Mr. ABRAMS: Exactly, exactly. I mean he has he’s gone a long ways down the road of talking himself in to a possible violation of the espionage act.
It’s not clear, even given this, that hosts such as Amazon.com could also be tried under the Espionage Act. A spokesperson for WikiLeaks claims the organization’s actions are completely legal.
Some, such as The New Yorker’s George Packer have claimed that the diplomatic cables leaked aren’t comparable to the Pentagon Papers because they don’t serve a public interest in the same way. However, The Guardian reports that State Department’s attempts, at the request of the CIA, to gather DNA samples from UN officials may be a violation of international law. And it does seem that knowing that public officials are violating international law serves a public interest.
As we’ve reported, Wikileaks started hosting its main site on Amazon.com’s Amazon Web Services following a DOS attack.
Web hosts deciding not to host particular content is nothing new. Earlier this year Rackspace decided to stop hosting controversial preacher Terry Jones’s web site. GoDaddy has generated controversy in the past by taking down sites like SecLists and RateMyCop (see coverage here and here).
However, because of the political nature of Wikileaks’ content, this instance is generating significantly more controversy.
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