“The first serious infowar is now engaged,” EFF co-founder John Perry Barlow tweeted on Friday. “The field of battle is WikiLeaks. You are the troops.”
And here we are.
In the week since the whistleblower site released its latest round of documents to major global newspapers, the site has been besieged by DDOS attacks (upwards of 10 Gbps at one point), forcing the site offline and hampering its ability to deliver data.
Sponsor
After moving to Amazon Web Services at one point, presumably to better handle the traffic, the site was summarily booted on Wednesday, shortly after Senator Joe Lieberman condemned Amazon with a “providing comfort to the enemy” sort of rationale. In justifying its actions, Amazon pointed to its Terms of Service, and challenged Wikileaks’ rights to and ownership of the documents, as well as its ability to promise no injury will occur based on the content.
A similar argument was made by the visualization company Tableau Software on Thursday when it also expunged all Wikileaks data from its site.
On Thursday, Wikileaks also lost its nameserve provider when EveryDNS cut service. EveryDNS made a different argument than Amazon or Tableau, arguing that while it supported Wikileaks, it could not continue to provide services to its 500,000 other customers while under the barrage of heavy DDoS attacks.
Late Friday night, PayPal updated its blog, indicating that it was freezing Wikileaks’ account. The organization could no longer receive donations via PayPal. PayPal justified its actions by pointing to its Terms of Service, which dictate “our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity.”
Terms of Service & the Espionage Act
Despite the arguments that Amazon, PayPal, and others make about the illegality of the leaked documents, it’s not clear that Wikileaks has broken any law. It is clear that some politicians and pundits wish it to be so, most often invoking the Espionage Act as justification.
The Espionage Act makes it a crime to interfere with military recruitment or to convey information dealing with national defense. Since its passage in 1917 (Red Scare, anyone?), the law has been challenged a number of times in the courts, most notably with regards to the Pentagon Papers when the Supreme Court ruled that The New York Times was within its rights to publish the leaked information. “Conveying” government secrets is a crime; “publishing” them is not. It is protected by the First Amendment, and for the government to intervene to prevent that from happening is unconstitutional.
Of course, Amazon and the other companies aren’t the government, and as such can intervene – determining whether or not to have Wikileaks as a customer. The legality of publishing documents is irrelevant. These companies can shrug and say it’s “against the Terms of Service” and that’s it. Wikileaks, take your business elsewhere.
The Weakest Links
The ability for Internet companies and Internet users to be able to create and share without government intervention is not just a mark of free society. The tech industry pays a lot of lip service to the “open Internet,” arguing that it is the very thing that has fostered innovation in and growth of the industry. The filters, monitors, blocks, and blacklists associated with repressive governments, so the argument goes, serve not just to prevent access to information but to stifle creativity and entrepreneurship.
No matter how one justifies the actions of Amazon and the like – Terms of Service or otherwise – the events this past week have not simply demonstrated the spinelessness of certain companies to stand up to government and public pressure; they have pointed to some of the weak links in the “open Internet,” those points of control that are particularly important (and seemingly particularly vulnerable).
1. Cloud Storage:
Amazon Web Services is the leader in cloud computing, that is, virtualized servers that offer a far cheaper and more flexible way to store data and host websites. Cloud computing is, in the words of Newsweek’s Joseph Galarneau, the “21st century equivalent of the printing press.” Arguably cloud computing has helped facilitate the explosion of new media and new companies.
However, that the modern-day printing press – the way in which companies increasingly host and distribute their content – is so quick to shut its doors is deeply troubling. It raises a number of questions about the future of free expression as well as about the reliability of the cloud as a tool for such. It also highlights the importance of data portability. If cloud providers can so easily oust controversial customers, the cloud may be a less appealing route for publishers. But once “in the cloud,” we do need interoperability – the ability to easily move storage from one cloud provider to another. We shouldn’t be locked in to one provider who can then completely govern whether or not we can have access to its “printing press.”
2. DNS:
It’s important to point out that unlike Amazon, Paypal, and Tableau, EveryDNS did not boot Wikileaks due to political pressure. The service provider said it needed to sever the contract in order to maintain services to its other customers. Nonetheless, problems with Wikileaks’ DNS — as well as recent domain seizures by Homeland Security – point to the second major weak link in the open Internet: the domain name system. The DNS, or Domain Name System, is one of the foundational elements of the Internet, responsible for translating the numbers in IP addresses to the more human-friendly names. And Wikileaks has struggled to keep its site up, having to move from Wikleaks.org to Wikileaks.ch to Wikileaks.nl as various countries have put pressure on both local DNS providers as well as on ICANN the international body that manages the registration of top level domains.
There have a number of suggestions recently to address this centralized control, most notably a proposal by Pirate Bay co-founder Peter Sunde to work towards the development of an alternative P2P DNS, one that would be decentralized and distributed. In the meantime, hundreds of people are setting up mirror sites for Wikileaks.
The Public Space, Privately Controlled
We often talk about the Internet as being the new “public square,” the place where we communicate, participate, argue, share, debate, learn, listen. But many of the key pieces of Internet infrastructure are privately owned. And these companies have no obligation – and sometimes clearly, little willingness – to protect our First Amendment rights.
As the EFF recently noted, “Online speech is only as strong as the weakest intermediary.” And while the U.S. likes to describe itself as the bulwark for free speech, neither the government nor corporations have proven to be defenders of such.
The actions taken against Wikileaks should be a wake-up call to those of us who do value free expression. We need to support organizations, projects, and technologies that will make sure that the Internet remains open, and that information and knowledge are free. We need to recognize the “weak links” and move to strengthen the alternatives.
This op-ed first appeared on my personal blog
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