Amazon Web Services dropped WikiLeaks material from its servers on Tuesday, a move that is widely assumed to be a direct response to pressure from the Senate Homeland Security Committee. A statement from Amazon disputed that, stating that they kicked WikiLeaks off for violating the terms of service: “For example, our terms of service state that ‘you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.’”

It’s not the first time the company has pulled something like this. Just last year, Amazon “remotely deleted” the e-editions of two books that customers had already downloaded to their Kindle readers, after it was discovered that the books’ seller did not have the rights to them. (And just their luck: the public relations headache that resulted from the deletion was no doubt amplified by the fact that the two books in question happened to be by George Orwell.) As Gawker’s Ryan Tate notes, Amazon’s policy of which content partners it will protect, and when, and why, is inconsistent and unpredictable, to say the least.

TechPresident’s Micah Sifry reported Wednesday that, according to the Senate Homeland Security Committee spokesperson Leslie Phillips, the committee has not contacted any other tech companies whose services WikiLeaks has utilized, like Twitter or Facebook. However, Phillips added, “Senator Lieberman hopes that what has transpired with Amazon will send a message to other companies.”

At least one other company got that “message” loud and clear. Open-source data visualization program Tableau Public also removed WikiLeaks-published visualizations from its site, a decision which a statement on the Tableau website acknowledges was made in response to the public request by Lieberman to do so.

So what does that mean for the rest of us? CJR assistant editor Lauren Kirchner spoke with Ethan Zuckerman, researcher for the Berkman Center for Internet and Society—who has written about the tricky intersection of public space (the Internet) and private infrastructure (service providers)—about the broader implications of this news.

Why do you think WikiLeaks chose Amazon servers in the first place?

My guess is that it’s a very easy way to buy a lot of server capacity really fast. I mean, WikiLeaks was facing two things at the same time: they were under tremendous load, probably in the neighborhood of ten to fifteen gigabits per second of traffic, and at the same time they were experiencing a DDos [distributed denial-of-service] attack of two to four gigabits per second the first time around, and about ten the second time around. It’s a pretty common tactic when you’re under DDoS to try to get onto a pretty big server farm. If you’re both trying to serve an enormous amount of traffic and cope with DDos, Amazon makes very good sense, actually. You’re going to pay for it, but I don’t think that was their big constraint; their big constraint was trying to stay up in the face of all the interest in the documents.

To what extent is a company like Amazon legally responsible for documents it hosts?

That is an incredibly complicated question. Everything has to go under the I Am Not a Lawyer disclaimer here. Essentially, there are real questions about what the legal liability is, in dealing with any of the WikiLeaks material. Different lawyers might answer that question very differently. Generally speaking, though, there are a good number of protections of internet service providers against things like copyright infringement, through things like the DMCA [Digital Millennium Copyright Act of 1998], which basically says, as long as you follow this process correctly, you’re not going to be held liable for contributory copyright infringement. But to the best of my knowledge, no one’s put anything together essentially saying, here’s the policy you should go through if you are alerted that you are holding government secrets. I think where I and Rebecca [MacKinnon] and others have criticized Amazon’s move is that it’s not clear that they actually received any legal notice; it sounds like what it amounted to was essentially just political pressure.

I know this is just conjecture here, but if Amazon had pushed back against the Senate Homeland Security Committee, do you think the Committee would have threatened legal action? What’s the nature of the threat there?

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….

You’re leading the question, but it’s a place I’m happy to be led. I wrote a piece in October called “Public Space, Private Infrastructure” based on a talk I gave at the Open Video Conference, in which I talked about what you’re getting at. I talked about a friend of mine, Wael Abbas, an Egyptian activist who has been responsible for posting more than 200 videos that expose the police brutality and abuse in Egypt on YouTube. At one point, YouTube reacted and pulled them all down. What I said was, ‘I know you all are expecting me to say, YouTube is evil, don’t ever use it’; but actually what I said was that he was right to use YouTube. The reason being, his blog is under a DDoS attack all the time. If he tried to host his own videos, he’d never manage to keep his blog up. Just the infrastructure required to make those videos accessible to the world, and to protect them from attack, basically requires you to crouch under a big rock. YouTube is one of the biggest rocks out there; it makes perfect sense that you’d want to keep your speech there.

However, you have to realize that you’re then dependent on that organization. So you need to choose organizations that have a good track record of protecting people’s rights. YouTube actually does; Facebook, for instance, doesn’t. We’re starting to sort of get a sense for who is better and worse at this. Ideally you’d like to use an organization that has someone who’s dedicated to human rights issues, and whom you can contact if there is a human rights violation related to a takedown of your stuff.

The truth is, if you decide to go it alone, do it yourself, you might find yourself in the situation that my friends recently found themselves in, in Zimbabwe. They run a leading human rights site, and they had purchased hosting by Bluehost, which is a hosting provider. Bluehost woke up one day and said, we shouldn’t be providing services to people in Zimbabwe. Basically it was based on a terrible misinterpretation of U.S. trade sanctions, which are against Bob Mugabe, not against everyone in the country. But they removed the site. Unless you have your own T3 running to your own server, the Internet is privately held. And at some point, you’re going to run into a corporation, and that corporation’s decisions determine whether you stay online or not. And that is troublesome.

In a way, this reminds me of the warrantless wiretapping controversy. Americans tend to think of phone calls as private—or they used to, anyway—but apparently phone companies can make secret deals with the government to let them listen in whenever they want, and do so without telling their customers. That came as a shock to most people.

But at least that’s the government, right? As absurd and horrible as all of that is, and was, the Amazon situation in some ways is even worse. This wasn’t a government decision, this was a corporate decision. If the U.S. government had somehow managed to get an injunction for some court system ordering Amazon to take this down, I would then be asking questions about whether that moved correctly through the legal channels. But what happened here, instead, is that a powerful senator called up Amazon and said, “This is terrible, do the right thing,” and they caved. That should send a message to anyone who is working with Amazon, that Amazon might make the decision to stop providing you services based on your content, or based on a complaint. That’s worrisome.

You said that people should be choosing their service providers carefully, based on the companies’ human rights history, or a person on staff who is dedicated to those types of issues. But is that information that people typically have access to?

I think that it’s information that we’re only going to get through better press coverage of this. I think this is a new issue for most people. I think that most people just haven’t thought through this at all. And when people respond to something like WikiLeaks getting cut off of Amazon by saying, ‘This is a First Amendment issue,’ it shows you how little people actually know about what’s going on.

Lauren Kirchner is a freelance writer covering digital security for CJR. Find her on Twitter at @lkirchner