EFF: Online Speech is Only as Strong as the Weakest Intermediary

"a web hosting company isn’t the government. It’s a private actor and it certainly can choose what to publish and what not to publish. Indeed, Amazon has its own First Amendment right to do so. That makes it all the more unfortunate that Amazon caved to unofficial government pressure to squelch core political speech. Amazon had an opportunity to stand up for its customer’s right to free expression. Instead, Amazon ran away with its tail between its legs…."

I think it misses the main point as well. Large hosting companies are getting more wary of hosting controversial content of any kind. I don't think Rackspace killed the Quran-burning site because of government pressure, for example; and that situation seems fairly similar to this one. It might be that in this case the reason it was "controversial content" was pressure from the government, but it's not clear to me that Amazon wouldn't have done the same thing for different kinds of controversial content where the pressure came from, say, Oprah, rather than the government.

What if anything to do about that situation is trickier, which I guess is one reason for the EFF to frame it the other way. If indeed it was explicitly government pressure behind the scenes that caused Amazon's decision, then the analysis isn't nearly as tricky, because it's just government censorship, so what the EFF should do about it is obvious (oppose censorship, like they always do).

I have no doubt that political (and popular?) pressure played a role in Amazon's decision. From a business standpoint it seems like a solid decision. Hosting wikileaks gains little and could be quite costly in lawsuits, ddos, loss of political standing and bad press.

Regardless this is a clear message that if you are going to publish something controversial online, Amazon (and likely similar providers) are not the place to do it.

Unfortunately the scope of what is controversial is quickly expanding and already encompasses what some would consider speech vital to maintaining the rights and freedoms granted to citizens of the US.

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/).

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.

Bah. Amazon didn't cave to political pressure, it made a sound business decision. While it may offend your politics this was about the bottom-line. It isn't Jeff Bezos' job to make polical statements with other peoples money, he has enough of his own for that. This isn't a privately held firm we are talking about folks. I doubt Amazon's PR team had to give this more than 5 minutes thought before calling the board. Whining about Amazon not fighting the fight is to either sorely misunderstand the nature of business OR a veiled attempt to promote anti-capitalism rhetoric. Liberal Capitalism (or however closely we approximated that during the last century) is in its death throes. The revolution is upon us and the bastards are winning. But to whine about Amazon acting in their own self interest? Wake up! As much as I love the Amazonians (as they refer to themselves) and have had the pleasure of gracing their halls on several occasions you need to realize that in the true scheme of things Amazon and the Federal elite are on the same side in this war. And it isn't the side many of you think you are on. But the power structure keeps selling the dream and enough of the poor and down trodden keep buying it up.

If you want to attack Amazon's decision, then you must attack the forces and structure behind it. If this was a game, Amazon made the right move. Don't hate the player, hate the game. Please.