As WikiLeaks' Julian Assange awaits a decision later this week on whether he'll be extradited to Sweden to face sex crime charges, Harvard Law professor Yochai Benkler wants to remind us of another legal challenge to WikiLeaks that's been largely forgotten over just the last month: the companies including Amazon, Visa, PayPal and MasterCard who cut off service to the company at the first whiff of political controversy.
In an upcoming paper to be published in the Harvard Civil Rights-Civil Liberties Law Review, Benkler takes apart the government and private sector response to WikiLeaks' year of ever-more-controversial revelations. He analyzes legislators' calls for Assange's execution after Cablegate, the negative media blitz, and vigilante hacker attacks on the site. But perhaps most interesting is his analysis of Amazon's decision to kick WikiLeaks off its cloud computing service immediately following a call from Senator Joe Lieberman for private companies to cut ties with the group.
Because the company apparently acted on its own, without direct order from the government, this decision is unreviewable by a court. Given what we know of the materials as they have come out to this point, there is little likelihood that an official order to remove the materials would have succeeded in surmounting the high barriers erected by first amendment doctrine in cases of prior restraint. The fact that the same effect was sought to be achieved through a public statement by an official, executed by voluntary action of a private company, suggests a deep vulnerability of the checks imposed by the first amendment in the context of a public sphere built entirely of privately-owned infrastructure.
Benkler, a faculty member at Harvard Law's Berkman Center for Internet and Society, writes that the same method was used to cut off WikiLeaks' payments from Visa, MasterCard, and PayPal: "The implicit alliance, a public-private partnership between the firms that operate the infrastructure and the government that encourages them to help in its war on terror, embodied by this particularly irritating organization, was able to achieve extra-legally much more than law would have allowed the state to do by itself."
He cites other examples of how government pressure on private companies has violated civil liberties: McCarthy-era black lists were generated by the House UnAmerican Activities Committee, but enforced by private sector hiring practices. And AT&T was pressured to allow NSA wiretaps under the Bush administration and in return granted immunity from law suits by the government.
But WikiLeaks' exile from Amazon's servers deserves special scrutiny, because it shows just how receptive the Web--where media outlets are often built on layers of pay-as-you-go services--can be to this kind of extra-legal government intervention. Benkler doesn't argue that Lieberman's pressure on Amazon and others to jettison WikiLeaks is illegal. In fact, its legality is exactly what calls into question the future of free speech online.
Read Benkler's full paper here.
