The interesting thing about it is, the actual cables, the actual data in question, wasn’t being distributed on Amazon servers. That’s being hosted on a peer-to-peer network, so what Amazon was distributing was basically the index page: ‘here’s what we have, here’s the link to the torrent files.’ So the truth is, you’d have a hard time getting an injunction saying that Amazon was contributing to espionage or to the dissemination of stolen goods, because in fact, all they were really doing was hosting the HTML page that said, here’s how to go get this on bit torrent. As far as we can tell, no one did take legal action to force Amazon’s hand; it just responded to pressure. All of that, to me, makes it look pretty egregious, and should raise some questions for anyone who’s a customer of Amazon’s web services.
When WikiLeaks got the boot from Amazon, they wrote on Twitter, “If Amazon is so uncomfortable with the First Amendment, they should get out of the business of selling books.” Do you consider this a First Amendment issue?
The First Amendment is what everyone loves invoking. But of course the First Amendment begins with the words “Congress shall make no law.” And I didn’t see Congress passing any legislation here. Here’s the thing. Amazon is perfectly, legally justified in kicking customers off its service for any reason. They do have to realize that there are enormous PR implications when they do so. What Amazon is asserting here is that they are willing to remove content based on political pressure, or based on the perception of the offensiveness of that content.
What’s really hard about this is that we perceive the web to be a public space, a place where you should be able to go and set up your soapbox and say whatever you want to say to the world. The truth is, the web is almost entirely privately held. So what happens here is that we have a normative understanding that we should treat this like public space—that you should have rights to speak, that no one should constrain your rights—but then you discover that, basically, you’re holding a political rally in a shopping mall. This is commercial speech, controlled by commercial rules. My sense is that companies try really, really hard not to assert their corporate imperatives, and to say, ‘we’re going to silent speech,’ because that makes people really uncomfortable. But in this case, I think Amazon probably did a mental calculation and said, ‘if we don’t do this, we’re going to end up the subject of a boycott on Fox News, and that’s coming right before the Christmas season, we can’t afford that.’ I have no way of justifying that statement; that’s a speculation. But I understand why they might be concerned about this.
What I actually think we might want to do, on a policy standpoint, is to try to obligate Internet service providers to protect speech in a way that recognizes that it functions as public speech. If there were a way for Amazon to say, ‘actually, we can’t remove this, these people have a right to speak unless someone provides an injunction to prove that this is illegal,’ that would save them from being the subject of this CJR article at the moment.
There’s definitely an inherent compromise at play here. At CJR, for instance, we occasionally upload videos to our site, and for that we use YouTube or Vimeo. The great thing about those services, of course, is that they’re free and easy to use. But the downside is we don’t have control then over that content, and who might have access to it, who might erase it, etcetera, because those companies don’t have an obligation to us, to protect our material that we’ve uploaded. Do you think that media organizations—and everyone—should be more aware of this kind of compromise? I realize that’s a pretty leading question at this point .