Blocking WikiLeaks Can Free Speech Be Protected on a Private Internet?
Does the US constitution protect WikiLeaks? Only courts can decide how far the whistleblowing platform can go. Yet Amazon and others have simply blocked the site, rather than waiting for legal clarification. The companies' cowardice is now threatening Internet freedom.
The disappointment was huge -- the fury even greater.
Why have companies like Amazon and PayPal decided that they didn't want WikiLeaks as a customer? Angry citizens have called for boycotts on online forums, Facebook and Twitter. Many accuse the companies of censorship.
This term is misleading. There is no state censorship at play here. For that a court would have to decide in a concrete case against the freedom of the press. And that has not occurred here -- mainly because the Internet companies did not even take their chances with the legal route.
Despite all the political pressure that is being applied to WikiLeaks, in the US it is not against the law to process donations for the platform or to distribute its documents. Yet Amazon and PayPal have decided not to do so any more.
WikiLeaks can continue to communicate via Twitter or Facebook, and many people can access the platform's contents on their Internet providers. These other companies have not decided to block WikiLeaks.
'Pick Your Fights'
The different reactions from Internet firms to the WikiLeaks publications reveal a dilemma. Many citizens regard the Internet as a public space, but in fact it is a private sphere. And the companies that control almost all the forums on the Web can, if in doubt, exercise their rights of ownership and ban who they like.
The extent to which citizens are free on the Internet depends on whether these companies want to get into conflict with the state or other firms, for example copyright holders.
They have to work out, on their behalf, how far the right to free speech goes, and when it infringes upon other rights, for example personal or author rights.
There is a saying "pick your battles." Well, Internet giants Amazon and PayPal have clearly decided not to join the fight for WikiLeaks. They are avoiding conflict and have thrown out the activists by pointing to their terms and conditions. They have the right to do so. Companies should be allowed to be cowards, if the risk seems too high for them.
That risk could be a general threat from the US political establishment -- or the fury of US customers, who regard WikiLeaks as a platform for state treason. Such rage could hit the company a lot harder than the revolt by those activists now calling for a boycott of Amazon and PayPal.
Up to the Courts to Rule on WikiLeaks
Yet these calls for a boycott should be welcomed. They could show the companies that the situation is actually the exact opposite to what they had assumed: that perhaps they have been wrong in their appraisal of the reaction to WikiLeaks and have actually annoyed more customers than expected with the block. Then perhaps the next time they will do things differently.
What is really of concern is how quickly the companies made these decisions. Their way of dealing with controversies can only harm the Internet, regardless of what one's stance is on WikiLeaks. These positions are so contrary -- treason vs. serving the public good -- and the contentious issue is so fundamental -- what can citizens publish? -- that it should be a question for the courts.
At the moment it is doubtful that it will get that far -- not just because the Internet giants are too cowardly to put the US government's desire for a lawsuit against WikiLeaks to the test.
But WikiLeaks activists themselves are also avoiding a legal confrontation. Instead of suing Amazon they are simply putting the data on a different server. The move demonstrates pragmatism. But in the long term it would be of more use to the Internet in the US were the issue brought before the courts -- to clarify if Amazon can simply delete a customer's content.
In Germany a similar question is also pending. The non-profit Wau Holland Foundation, which handles and transfers donations to WikiLeaks in Germany, is looking at taking legal action against PayPal. The eBay subsidiary had blocked the foundation's account -- and a bank is not allowed to simply close the account of a party or organization. There are relavent precedents in Germany.
The question in the US is whether the constitution gives protection to the controversial WikiLeaks publications. It is to be hoped that a court will clarify this issue with relation to the WikiLeaks dispute, instead of the current situation where companies are making these decisions based on their expectations of public opinion and the potential for conflict with politicians.
It is only with companies that are more generous in their interpretation of fundamental rights that the Internet can continue to function as a public space.