by Kevin Bankston

When it comes to Wikileaks, there’s a lot of fear out there on the Internet right now.

Between the federal criminal investigation into Wikileaks, Senator Joe Lieberman’s calls for companies to stop providing support for Wikileaks and his suggestion that the New York Times itself should be criminally investigated, Senator Dianne Feinstein’s recent Wall Street Journal op-ed calling for prosecution of Wikileaks founder Julian Assange, and even the suggestion by some that he should be assassinated, a lot of people are scared and confused.

Will I break the law if I host or mirror the US diplomatic cables that have been published by Wikileaks? If I view or download them? If I write a news story based on them? These are just a few of the questions we’ve been getting here at EFF, particularly in light of many US companies’ apparent fear to do any business with Wikileaks (with a few notable exceptions).

We unfortunately don’t have the capacity to offer individualized legal advice to everyone who contacts us. What we can do, however, is talk about EFF’s own policy position: we agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles ([1], [2]) and would be “extremely dangerous” to free speech rights. Along with our friends at the ACLU, “We’re deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea.”

Even better than commentary, we can also provide legal information on this complicated issue, and today we have for you some high quality legal information from an expert and objective source: Congress’ own research service, CRS. The job of this non-partisan legal office is to provide objective, balanced memos to Congress on important legal issues, free from the often hysteric hyperbole of other government officials. And thanks to Secrecy News, we have a copy of CRS’ latest memo on the Wikileaks controversy, a report entitled “Criminal Prohibitions on the Publication of Classified Defense Information” and dated this Monday, December 6.

Like this blog post itself, the CRS memo isn’t legal advice. But it is a comprehensive discussion of the laws under which the Wikileaks publishers — or anyone else who obtains or publishes the documents, be it you or the New York Times — might be prosecuted and the First Amendment problems that such a prosecution would likely raise. Notably, the fine lawyers at CRS recognize a simple fact that statements from Attorney General Eric Holder, the Senators, the State Department and others have glossed over: a prosecution against someone who isn’t subject to the secrecy obligations of a federal employee or contractor, based only on that person’s publication of classified information that was received innocently, would be absolutely unprecedented and would likely pose serious First Amendment problems. As the summary page of the 21-page memo succinctly states,

This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.

The report proceeds to discuss the Espionage Act of 1917 and a number of other potentially applicable statutes, followed by an extended discussion (at pp. 14-20) of how the Supreme Court’s First Amendment decisions — and in particular the Pentagon Papers case — could complicate such a prosecution. For anyone interested in or concerned about the legality of publishing the Wikileaks documents and the legal and political challenges to a successful prosecution, this CRS memo is an absolute must-read.

Hopefully, this information will help counter much of the fear that our government’s so-called “war” against Wikileaks has generated. Meanwhile, we will continue our effort to oppose online censorship and provide additional news and commentary on the ongoing WikiLeaks saga, which is shaping up to be the first great free speech battle of the 21st century. We hope you’ll join us in the fight.

Amazon and WikiLeaks – Online Speech is Only as Strong as the Weakest Intermediary

Co-authored by Rainey Reitman and Marcia Hofmann

The First Amendment to the Constitution guarantees freedom of expression against government encroachment — but that doesn’t help if the censorship doesn’t come from the government.

The controversial whistle-blower website WikiLeaks, which has begun to publish a trove of over 250,000 classified diplomatic cables, found itself kicked off of Amazon’s servers earlier this week. WikiLeaks had apparently moved from a hosting platform in Sweden to the cloud hosting services available through Amazon in an attempt to ward off ongoing distributed denial of service attacks.

According to Amazon, WikiLeaks violated the site’s terms of service, resulting in Amazon pulling the plug on hosting services. However, news sources have also reported that Amazon cut off WikiLeaks after being questioned by members of the staff of Senate Homeland Security Committee Chairman Joe Lieberman. While it’s impossible to know whether or not Amazon’s decision was directly caused by the call from the senator’s office, we do know that Lieberman has proposed “anti-WikiLeaks legislation” and that he has a history of pushing for online censorship in the name of “security.”

Importantly, the government itself can’t take official action to silence WikiLeaks’ ongoing publications — that would be an unconstitutional prior restraint, or censorship of speech before it can be communicated to the public. No government actor can nix WikiLeaks’ right to publish content any more than the government could stop the New York Times and Washington Post from publishing the Pentagon Papers, which were also stolen secret government documents.

But a web hosting company isn’t the government. It’s a private actor and it certainly can choose what to publish and what not to publish. Indeed, Amazon has its own First Amendment right to do so. That makes it all the more unfortunate that Amazon caved to unofficial government pressure to squelch core political speech. Amazon had an opportunity to stand up for its customer’s right to free expression. Instead, Amazon ran away with its tail between its legs.

In the end, it’s not just WikiLeaks that suffers from corporate policies that suppress free speech, here on matters of intense public importance. It’s also readers, who lose out on their First Amendment right to read the information WikiLeaks publishes. And it’s also the other Internet speakers who can’t confidently sign up for Amazon’s hosting services without knowing that the company has a history of bowing to pressure to remove unpopular content.

Today Amazon sells many things, but its roots are in books, which historically have been a lightning rod for political censorship campaigns. These campaigns tried and failed to suppress Allen Ginsberg’s Howl, Nabokov’s Lolita, and even Orwell’s 1984. And it’s the book industry — including writers, publishers, booksellers and libraries — that has championed the rights of readers and helped America maintain a proud history of free speech in the written word, even when faced with physical danger.

While it’s frustrating to think of any hosting provider cutting services to a website because it considers the content too politically volatile or controversial, it’s especially disheartening to see Amazon knuckle under to pressure from a single senator. Other Internet intermediaries should now expect to receive a phone call when some other member of Congress is unhappy with speech they are hosting. After all, it worked on Amazon.