Responses to WikiLeaks tweet show that nothing published on the Internet is protected under the first amendment

WikiLeaks

WikiLeaks’ ‘Cablegate’ leaks were hosted on Amazon.com servers until 1 December when, The Guardian (UK) reports, Amazon bowed to political pressure and ceased hosting the main wikileaks.org site and the cablegate.wikileaks.org subdomain. The Guardian article sounds like a bit of a beat-up. In the past, WikiLeaks have used the Swedish-based hosting service PeRiQuito AB (PRQ). PRQ keeps a minimum of information about its clients and is protected by Sweden’s liberal media laws. PRQ is the natural choice for groups whose activities, if not illegal in other countries as is the case with its most infamous client The Pirate Bay, inhabit a legal grey area. Therefore, if WikiLeaks used Amazon’s hosting services it may have been in anticipation of a day like 1 December.

Amazon’s termination of its contract with WikiLeaks may not be so surprising. What is surprising is the response to WikiLeaks Editor in Chief Julian Assange’s tweet claiming that if Amazon is “so uncomfortable with the first amendment, they should get out of the business of selling books”. The Guardian article notes the response from ‘constitutional lawyers’, whomever they may be:

Although there are echoes of the censorship row between Google and China earlier this year, constitutional lawyers insisted it was not a first amendment issue because Amazon is a private company, free to make its own decisions.

This is also the response from lawyer Kevin Bankston at Electronic Frontiers Foundation (EFF), a libertarian group aiming to keep the Internet open. He argued that Amazon’s actions were disappointing but not a breach of the first amendment. Fair to say that both Democrats and Republicans agree with Kevin’s second point. The analysis of the constitutionality of Amazon’s actions may be correct, but its implications are troubling.

This is why. The ‘argument’ seems to be, roughly, that

  1. An organisation (WikiLeaks) enters a hosting contract with a private company (Amazon).
  2. The organisation posts material that was obtained illegally.
  3. The private company terminates its service, because publishing illegal material breaches the terms of contract.
  4. The termination of the contract is not a breach of the first amendment because the organisation’s contract was with a private company and is, therefore, subject to the latter’s terms of service.

But here’s the rub. If we allow (4) then nothing published on the Internet through a hosting contract with a private company is protected under the first amendment. The terms of a hosting contract trump the constitution. Note that the argument is not that Amazon’s actions are justified because the WikiLeaks documents were obtained illegally but because WikiLeaks breached the terms of the hosting contract.

The next question is, ‘Can you host material on the web without entering a contract with a private company?’ If the answer to this question is ‘No’, then (4) really caches out as nothing published on the Internet is protected under the first amendment because the qualification ‘through a hosting contract with a private company’ is redundant.

But this is an absurd conclusion. Accordingly, there is either a fault in my quick analysis of the argument or (4) must be absurd. If the latter, then the argument put forward by EFF and ‘constitutional lawyers’ in response to Assange’s quip, and supported by Republicans and Democrats alike, is absurd. That, or in order to protect Internet publication under the first amendment the US will need to set up a series of state-run servers so that organisations wishing to host material can avoid entering hosting contracts with private companies. Only then would their first amendment rights be secured. But maybe not when a publication embarrasses the Government, as in the WikiLeaks case.

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