Sunday, December 12, 2010

Wikileaks drips on: some responses

Again like every self respecting blogger on the planet, I have written a short comment for the Grauniad on Wikileaks.

The main thrust of the point I was making is that settling a dispute of major public consequence by covert and non-legitimate bully boy tactics - covert pressure on hosts, payment services and DNS servers, plus DDOS attacks on Wikileaks hosts from the US-sympathising side - and anonymous DDOS attacks on sites like Amazon, Mastercard and Assange's alleged rape victims' lawyer's site from the Wikileaks-sympathising side - are BOTH the wrong thing to do. The point of a civilised society is suposed to be that disputes are settled by transparent legitimate and democratic, judicial or political processes. This has not been a particularly popular point with almost anybody, but it seems to me that it may indeed be naive (as some commenters have accused), but it is also, I stil think, both correct and needing saying, in the current frenzy around the First Great Infowar etc (it's 1996 all over again, yet again..).

One commenter asks not entirely unreasonably why it is justified for Amazon to take down content without going to court but "Vigilanteism" if the forces of Anonymous take down content extra judicially by DDOS attacks. The confusion here is in the word "justified". Amazon are justified, I argue, because since they host the content, they could be held legally liable for it (on a variety of grounds) if they do not take down having been given notice. That could lead to damages against them, injunctions blocking their site to customers (at their busiest time of the year) or even a prison sentence for their CEO . As a (liberal-sympathisng) friend in industry said to me, that last does tend to focus the mind. To state the bleeding obvious, Anonymous by contrast are not liable for the content they bring down.

But that meant I was saying Amazon were justified in a risk-management sense, and a legal sense, not an ethical sense. Was it Amazon's highest ethical duty to defend freedom of speech or to be responsible to their shareholders and their employees? That's a harder question. Many used to feel companies had no ethical duties at all, though that is gone in an era of corporate social responsibility (though this is still rarely if ever a legal obligation). Amazon's role is perhaps confused because they are best known as a consumer site selling books ie complicit with freedom of expression. Would we feel as aggrieved if Wikileaks had gone to a cloud host known only for B2B hosting? Perhaps, but what reason would there then be for expecting a host to behave like a newspaper?

What this leads us to as many, many commentators have pointed out is a renewed understanding that freedom of speech online is worryingly dependent on the good intentions of intermediaries whose core values and business model is not based on journalistic ethics, as was true for traditional news outlets in the offine age. This is hardly news: it has been making headines since at least 1996 when a Bavarian court convicted the CEO of Compuserve for distributing Usenet newsgroups to Europe, some of which happened to contain pornographic files. That incident among many others, lead to rules restricting the liability of hosts and intermediaries, in both the EU and US, which did quite well till round the early 2000s but are now struggling (not least because of pressure from both the copyright and the chld safety lobbies for less, not more, immunity). Not uncoincidentally, these rules are now being actively reviewed by among others, the EU, the OECD and WIPO. The really interesting question now will be what effect Wikileaks as a case study has on those debates.

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