December 8, 2010

Amazon Take Down of WikiLeaks - Is the Free Internet Dead?

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Amazon Take Down of WikiLeaks - Is the Free Internet Dead?PAUL JAY, SENIOR EDITOR, TRNN: Welcome back to The Real News Network, night number two of the Real News Webathon. As for you who have been following us on the Web, we're heading towards our $200,000 goal by the end of December 9. If you want to make a donation, you can phone 888-449-6772. And, as you know, this is a matching donor campaign. Every--you give us $10, our matching donor will match your $10. If you want to, obviously, donate on the Internet is the easiest, or, as I say again, 888-449-6772. Now, if you want to ask a question of our upcoming panel, the panel is "Is the free Internet dead?" You can do that by going to questions at and sending an email, and one of our colleagues will call you. Or you can phone 888-816-8867. Now, welcome. We're going to now talk about whether there is a serious threat to democracy and freedom of speech on the Internet. As you know, with WikiLeaks' release, one of the maneuvers the WikiLeaks did to help try to protect themselves was to put their site partly hosted on Amazon's cloud. Amazon provides a service where people can use essentially virtual storage, which helps serve their site and deal with large-scale Web traffic. Apparently, about a week and a half, two weeks ago, Senator Joe Lieberman of the Senate Home [Homeland] Security Committee phoned--or he did or had someone phone Amazon and leaned on them, and Amazon decided to take WikiLeaks down. That led to PayPal taking WikiLeaks down. They lost access, essentially, to the international banking system. Visa, MasterCard cut them off. They were cut off by a Swiss bank. And then perhaps many people think one of the more serious threats to--in terms of establishing a precedent, as well as what it might have done to WikiLeaks, is the DNS server. EveryDNS, the company that resolves their Internet IP address so ordinary mortals can get to them also cut them off. So what does this mean in terms of the open Internet and the whole concept that the Internet is an organ or an instrument of democracy in our society? Now joining us to talk about all of this, starting from Vancouver, is Tim Bray. He's the director--he was the director of Web technologies at Sun Microsystems. And if you look him up on Wikipedia, not WikiLeaks, you'll find out he's one of the more serious innovators in the history of Internet architecture. Also joining us now from India is Dr. Rebecca Parsons. She's ThoughtWorks' chief technology officer. ThoughtWorks is one of the more innovative and very large software company based in Chicago. And also in the studio with me is Marc Rotenberg. He's the executive director of the Electronic Privacy Information Center in Washington. He also teaches information privacy law at Georgetown University Law Center. Thanks for joining us. So, Marc, let me start with you. What's at stake when Amazon, under--gets a call from the Senate committee and then decides to take something down? What's at stake in terms of for the rest of us?

MARC ROTENBERG, EXEC. DIR., ELECTRONIC PRIVACY INFORMATION CENTER: I think it has a chilling effect on Internet freedom. This is not quite the same thing as a Government prosecution, which would raise another set of issues related to the First Amendment and constitutional freedoms. But when government exercises this type of control and goes to a large company that makes available information on the Internet and says, we have a problem with one of your customers, which is essentially what they did, they said to Amazon, we have a problem with one of your customers and we want you to suspend service to that person, then I think we need to be concerned, and we need to be concerned in particular because there's a very strong presumption with the Internet that many of these firms operating online have no real liability for the conduct of their customers. They don't have this liability in part so that they will foster freedom, that they won't be responsible, for example, for every word or every posting that someone makes through a service that they've provided. That's a good thing, actually, because we want people to be able to exchange information in this world without companies that are providing these services feeling the sense that somehow they're going to be responsible for what a particular customer might do.

JAY: So is this--will this be somewhat analogous to, say, if Time Warner Cable or, say, Verizon or Comcast, if the government didn't like something a particular channel on their pipelines was doing, to say, we want you to turn off, or we don't like Jon Stewart, so we want you to turn off Comedy Channel?

ROTENBERG: Yes. I mean, in some respects I almost feel that it's worse. I was involved in the very early days of the Internet freedom litigation battles, and I remember, for example, on the Communications Decency Act, when we were trying to explain to the courts that in fact people that provide information on the Internet should have protection that's even greater than the First Amendment--. I mean, if you think about it for a moment, a publication like The New York Times or The Washington Post can still be liable if they include in their text publication, or even their online publication, you know, statements that might be defamatory, for example. But a bookstore or library that makes books and magazines available to the public is actually a distributor, which is a better type of protection than a publisher. And we think about, you know, websites and Web services basically as being distributors of information. They're not even exercising any editorial control. So, as I said, what's so very troubling here in what's happened recently is that the US government, at least some US officials, Senator Lieberman, for example, have gone to these private companies and said to them, you know, we don't like one of your customers and we are making a decision, really, without any legal process.

JAY: But isn't this the point? There's been no due process [crosstalk] this is like the House Un-American Activities Committee phoning a production company in Hollywood, saying, we don't like such and such actor.

ROTENBERG: Well, yes. And the other thing that's quite remarkable, if you think about it, there's actually no prosecution or no indictment pending in the United States against WikiLeaks or Assange. In other words, we're not even in the realm where we can say, well, there's a government indictment, there's some evidence that needs to be preserved, there's some illegal conduct that needs to be suspended pending a determination by a court. I mean, there are procedures for doing that if the government were to make--.

JAY: Well, it's called injunction.

ROTENBERG: Yes.Injunction. Exactly. If the government were to make that allegation in this situation, that there had been criminal conduct, they've brought an injunction, I mean, there are other procedures, then we might say, well, this is interesting now; it will go before a judge; there'll be some type of trial or determination. But, you see, what's happened here, we haven't even had a legal judgment. We've simply had government officials making phone calls.

JAY: I mean, there's not even an allegation that Wikipedia [sic] stole anything. They released something that in theory someone else stole, which is what The New York Times did.

ROTENBERG: Yes. I mean, and of course an analogy to the Pentagon Papers is actually quite interesting, because if you go back to what the Pentagon Papers were about, the The New York Times in that period wasn't actually being harassed by the government for its reporting; it was being harassed because it chose to make available information that was previously controlled by the government. In fact, I think the analogy's quite strong. WikiLeaks is in a very similar situation today. They didn't leak information. They didn't violate any confidentiality obligation. They simply made available to the public information that the government did not want to be made available.

JAY: So what we're focusing on here is what this means in a broader sense to the Internet, particularly Amazon's decision to go along with this. Rebecca, again, you're joining us from India. What city are you in, Rebecca?


JAY: Bangalore. So from a lot--I have learned over the last few years, meeting some of the technology enthusiasts in the Internet, that a lot of people got involved in this technology partly because of its democratic character. They really feel like they've been building something, that it helps to transform society. So what does--and I know--I think you're one of those kinds of people. So what does that mean to people that work in technology, this decision by Amazon and others and what precedent it sets?

PARSONS: Well, I think focusing on Amazon is a little bit problematic, because it's a more general issue, which is information sharing and the explosion of knowledge, as well as businesses, which has been enabled by the free nature of the Internet, by lowering the barrier to entry to free expression of ideas, by breaking some of the strangleholds on various publication channels, as well as make it easier for a business to actually begin selling a service or a product to a customer base without having to negotiate for shelf space, things of that nature. So a lot of it, a lot of the power from the Internet, comes from the fact that we have a low barrier to entry across there. And when you start taking away some of the more fundamental services that support the network--the ability to find the site in the first place through a search, the ability to resolve the name through a DNS--and then some of the auxiliary services like PayPal, which allow you to actually pay for things over the Net without each of those individual vendors having to figure out how to become authorized to accept credit cards and things of that nature--. So I think it will actually have a pretty chilling effect on innovation, and we all know how much innovation has been driven by the presence of the Internet.

JAY: I mean, I suppose there's alternatives to Amazon in terms of server clouds, but there's not much alternative to the international banking system. And then tell us about the significance of this company, EveryDNS, turning off WikiLeaks, 'cause that seems to be something that technology people are particularly concerned about.

PARSONS: Well, yes, for people who are hardcore computer types, getting to a site if you know the IP address is not a problem. But when you look at the broad community of users of the Internet--and this is part of what the Internet has made possible is that you don't have to have a computer science degree to be able to access content anymore--that DNS name, that DNS server takes a regular name, like, and resolves it to an IP address, so that ordinary people who--don't have to understand how the Internet works, what TCP/IP is [inaudible]

JAY: You don't have to go to seven-one-dot-zero-dot-something-something-something-something. They just put in "realnews".

PARSONS: Exactly. Exactly. And when you look at the effect of requiring that level of understanding of the Internet, as well as knowledge, it's a whole lot easier to remember "therealnews" than it is to remember those four numbers that actually correspond to what your site is.

JAY: So, Tim Bray, joining us from Vancouver, how big a threat is this? There was a piece in The Guardian today another technologist wrote that this--while this is a story of, you could say, a kind of oppression of WikiLeaks, it's also a story about the resilience of the Internet, that there have been many different ways emerging to kind of circumvent what Amazon has done, although I think they're going to have a lot of trouble on the banking side. But how big a threat is this?

TIM BRAY, FMR. DIR. WEB TECHNOLOGIES, SUN MICROSYSTEMS: [inaudible] I'm glad you asked that, because I was going to say that, you know, despite the fact that some extremely questionable political choices have been made in Washington and some extremely questionable policy decisions have been made by various commercial operators that you have named, WikiLeaks is winning. You know, they're on the air. Right now, today, they're on You can go there every day and read that day's release of cables. And, by the way, if you're interested in international politics, I recommend you do that. There's some fascinating stuff in there. There are ways to get money to them, and they are still getting money. So far, I'm reasonably cheered by the way the Internet has shown resilience in the face of what I would describe as a combination of stupidity and spinelessness we've seen exhibited in recent weeks. So, you know, the threat is irritating and worrying but so far hasn't proven actually seriously toxic. But it could, so we've got to watch out.

JAY: But I think that's the point, it could, like this is just the first beginnings of something. And, again, WikiLeaks is not the one directly charged with stealing something. But the interesting thing is Julian Assange has threatened that the next round of leaks is about banks, and if there's anything explosive in there, these attempts to shut down WikiLeaks might increase. And certainly if anyone has the connections to pull some strings in terms of this area it's banks, 'cause everyone's going to them for their cash, including the Amazons of this world. Marc, let's move back into the legislative side. So there's been no due process. But what do you see as some kind of process people should actually be demanding to stop this from happening on a broader scale?

ROTENBERG: Well, I thought it was very interesting that after Amazon decided to toss WikiLeaks off their servers, Daniel Ellsberg wrote to Amazon and said that he would no longer be a customer of that company, because he thought that they had abrogated their important obligations to protect intellectual freedom. And he noted, of course, that Amazon was built around the dissemination of books and ideas. Boycott is a strategy, but it's never been particularly effective in the online world. I don't know that that's going to have a huge impact. I do think what Tim said, though, is very important, and it actually speaks to the resilience of the network. What national governments are finding is that it's simply difficult to enforce these kinds of speech restrictions. I'm trying to remember--it may have been John Gilmore, but I think it was someone else [who] actually said a number of years ago, you know, the Internet treats censorship as a technical flaw and routes around it. And you see that today with WikiLeaks. If it's taken off of one domain, it can be re-hosted on another.

JAY: Now, we have seen in places like Iran and China and a few other places where they get serious about this, they seem to be able to be quite effective. I know there's been attempts to create mirror sites to get around some of the sites that China has tried to censor, but I think with somewhat limited success. So in terms of guarding and countries that are supposed to have this kind of freedom of the press, what measures should people be advocating?

ROTENBERG: Well, it gets complicated, of course, when we talk about China or Iran. I mean, in China there's a very elaborate firewall system that's designed to control access to information. There's a great use of real identification to be able to actually log and surveil online activity. And of course there are also criminal sanctions for people who disclose information that's considered to be a state secret. So with these various tools, one could say the Chinese government is actually more effective in trying to shut down access to this type of information. Iran has a different set of strategies, particularly around Twitter, where there was identification made possible and some spoofing to be able to identify people who were involved in that campaign.

JAY: Now, there you have a more direct control. I mean, I actually don't know the ownership model in China, but the government is far more interventionist in the economy in many ways. Here you have this situation where so much of the core infrastructure is privately owned but not really regulated. And on television, at least, the FCC has a certain amount of ability to regulate certain activities during elections, and other times television cable providers and--are not supposed to be cutting off certain channels for partisan reasons. There's next to no regulation, if I understand it correctly, on the privately owned piece of the core infrastructure.

ROTENBERG: Yes, and I think on balance that's probably a good thing, particularly when we're considering issues related to freedom of expression. I mean, in some other areas, for example privacy protection, we might like to see a little bit more government regulation. But in this area I think the absence of government regulations is preferable to the extent that it enables free speech. But what we are seeing in this particular moment in time is a government that recognizes it can't use those kinds of techniques to control access to information, so it's trying other techniques. And one technique, of course, is to say to a large company, you know, we expect you to do certain things on behalf of the government, and perhaps if you don't there will be some consequences. Now, it's an unusual act, I would say, for the US government to take, but I--.

JAY: That we know of. What's interesting in this case is it went public so quickly. We don't know whether at any time the White House says to General Electric, if you want a subcontract over here, we might be looking at what you're doing on your TV side.

ROTENBERG: Right. Well, I'm sure, of course, that quite a bit of that goes on, but it is a bit unusual in the Internet world, and part of the reason that it's unusual is that it turns out to be actually quite easy to document. In other words, it's very visible. People become aware, particularly in a case like WikiLeaks, when the government takes an action like this. And I understand Senator Lieberman took some credit for it. He actually put out a press release and said that the companies had responded to his requests. But still you see--.

JAY: But that doesn't mean it always has to be done so openly.

ROTENBERG: No, that--I think that's right. But, again, what is--and coming back to Tim's earlier point, I think what is a bit uplifting at this moment is that these efforts to try to control speech in this manner turn out [inaudible] to be fairly ineffective. I mean, there is certainly some impact on WikiLeaks in terms of receiving donations, for example, through PayPal or through Visa or other companies, but nonetheless, as other, you know, great Internet gurus have said, data wants to be free, and the efforts by government to curtail the dissemination of these cables, it turned out to be not very effective.

JAY: Rebecca, it doesn't only have to be governments. It could also be commercially motivated. But WikiLeaks is also a specific case that it was--they were--knew they were coming public for quite a while. They've been raising a lot of money. They have a lot of technological support. It's--they had allies in all these major newspapers. But if you took something the size of The Real News and/or something similar and we had a story someone didn't like, it would be a heck of a lot more difficult for us to try to deal with a closing off of our banking donation stream or any of the other kinds of measures that have been taken against WikiLeaks, and it doesn't always have to be so obviously public when it happens. I guess my question is: does it concern you that some of the critical pieces of the structure have no regulation against this kind of arbitrary interference? I don't think anybody wants government regulation that would allow more control of what gets on, but there doesn't need to be some kind of regulation or public-interest assertion that you can't use arbitrary means of getting people out of the Internet?

PARSONS: Well, I think that's an important point. I mean, you know, Tim's absolutely right that WikiLeaks is still on board, and that's a success. But I think you have to look at the lengths to which people have gone to keep WikiLeaks on board. And even though it's a very small organization, there are a lot of people with a lot of skills who are working to keep those mirrors active and to enable that organization to remain active and publishing and doing their work. Some mom and pop shop trying to put out an alternative view somewhere is not necessarily going to have access to that level of support. Now, I think it's also clear that our legislative frameworks and our whole legal system here has been lagging behind. And one of the concerns that I have personally is how easy it was to, outside of a legal framework, without due process, to start taking away some of those things. Good on all the technologists who are keeping WikiLeaks on board, but if you start having a less focused attack on one organization but then a broader attack on many smaller organizations, how is that going to start to work? So I do think we need to start looking at, you know, what kind of framework should be put in place to deal with the reality that we have now.

JAY: And what would you suggest as a starting point?

PARSONS: Well, I think we can look at some of the regulations that we currently have around things like common carriers. You know, we give the government and law enforcement the right to shut power to a building if they're trying to resolve, you know, a hostage situation, but that's done with due process, that's done because warrants are obtained and we have a legal system and a process that goes through and examines that. And if you look at something like, you know, kicking somebody off of the DNS system within our legal system, those same kinds of protections need to be considered. We need to look at what is the standard of evidence that the government will have to provide to say, this particular activity should be taken off the Internet. And I think we have lots of precedents on things like child pornography, as well as electrical utilities, to at least provide a starting point for our legislative framework to look at what constitutes due process in this case.

JAY: Tim, if I go to a public square, I have a right to be in a public place. I can more or less say and do almost anything I want. If I go into a private building, I don't have quite the same rights. If I'm driving on a public highway, you know, you can keep me off the highway if I break certain laws that in theory we've all agreed to--if I, you know, speeded too often and lost my license or I'd driven drunk or whatever. But if I were on a private-controlled highways, and there are some where you have--there's been privatizations of certain highways, and even some bridges, and you have to pay tolls. If that privately owned bridge or road can say, well, you can't come on, and just because I own it I can say you can't come on, and it's in my commercial interest because perhaps I want another government contract for another bridge, I mean, doesn't the Internet have to be a declared public space that we have a right to be on, privately owned parts of it or not?

BRAY: That's a tough question. I probably wouldn't sign up for that. I mean, at the end of the day, we do have a reasonably effective and, you know, battle-hardened legal and legislative framework, as Marc has been pointing out. But, you know, I don't think that Amazon has any particular legal obligation to carry WikiLeaks, and I would be very nervous about trying to write the legislation that would impose that kind of an obligation on them. I will say this, though, speaking as, you know, a business person and an Internet technologist, I am livid, I am furious at Amazon and at PayPal and the DNS company and so on for caving so quickly when the issue here is so flimsy and so problematic. I mean, there are--you know, if it were something that could lead quickly to war or some horrible consequence, well, maybe. But what we had was a grandstanding politician in Washington trying to score some points. And they didn't wait 15 minutes. They just rolled over. So, you know, there's going to be some pretty severe mud, I would think, sticking to these guys, and I would have to counsel people, you know, if you are going to be hosting some information and providing a service that maybe a politician doesn't like, you know, maybe you ought be looking for a different service than Amazon, because they just don't seem to have much concern for reliability [inaudible]

JAY: But, Tim, it's not just about Amazon. There--you know, with the way the concentration of--I don't know if its ownership or concentration of imagination, but places like Facebook and Google, I mean, some of these places are becoming of such scale that if they decided they don't want you on, and you might have a negligible resistance--. I mean, what if Google decided that, you know, the White House calls and says to Google, we don't want you to allow such and such be searchable--it could even be WikiLeaks--and under that kind of pressure, but Google has a private business, and they say, well, it's not in our business to get in a war with the government? And I think something somewhat similar to this actually happened to Google in China. When you get things of such enormous scale, in fact, doesn't it even make it easier for these companies if there's a law that declares [inaudible] public space, so they're not so individually on the hook?

BRAY: You know, maybe the correct body of legislation that comes to the fore is the antitrust legislation. When any, you know, core component of human communication, you know, it becomes embodied in a single private entity, well, you know, that's something that reasonably you should worry about, civically. But I have to say I would like to leave the solution of this up to the workings of people making reasonably free choices in a reasonably free market. As I said, you know, trying to write the legislation that would impose some sort of a commentary or requirement would be really tricky and easy to get wrong. And the best way to address that would be for there to be alternatives to go to. If you don't like the--what looks like political cowardice of some operator, go find another operator, which, you know, in this case WikiLeaks has done.

JAY: Well, Marc, are we in a reasonably free market? Or are we heading towards an unreasonable market?

ROTENBERG: Well, I think the concern about market concentration is genuine. I mean, we look in particular at Google and its dominance of so many key essential Internet services, from, you know, email and search and advertising.

JAY: And now Facebook as well. I mean, what is it? Half a billion people are on Facebook now.

ROTENBERG: Right. But, still, I mean, Tim's point is a good one. I think the piece that's missing, though, in the recent actions, of course, is some independent review. I mean, I would have to ask to have seen a court, a judge make a determination of whether in fact Amazon had the right, under its contract with WikiLeaks, to remove that company as did. Every customer has some rights with respect to a service provider [inaudible]

JAY: But what do you think about the position that some of these places have reached such scale, they need some kind of common carrier status with a certain amount of regulation?

ROTENBERG: Yes, I mean, I think there is a lot to that, and in fact they get something that looks very much like common carrier protection. It's referred to as Section 230 of the Communications Decency Act, which grants Web publishers this very broad immunity, so that they can provide information to the public without risk of being liable for any specific content. But part of the deal in that immunity is that they don't get to then reach in and then say, oh, well, here's some content we've decided that we don't like, and therefore we're going to toss off this speaker or remove the posting. And I think we're now in this dangerous space where the companies have actually been granted a very broad immunity to support free speech and nonetheless are taking these steps to remove content that some governments have decided is controversial. That's not a problem that's going to be solved by giving them any more protection, because in fact they have a great deal of protection. I think there's going to have to be some pushback against the government actors in this situation and some effort, as Rebecca has suggested, to establish some due process, which really means an independent review of whether or not these types of actions are lawful.

JAY: Rebecca, this issue of common carrier status or some kind of enforcement of what people have been calling Net neutrality, a lot of the Net neutrality debate so far has been about whether there'll be privileged tiers with more speed, which, especially on the video side, would be advantageous to some and disadvantageous to others. But it doesn't just have to be about speed. If an individual business decides it's in their business interests not to carry such and such--and right now there's nothing really stopping them from making these kinds of decisions. And, frankly, you know, it wouldn't take a heck of a lot to be back in a House of Un-American Activities kind of atmosphere. You already get a bit of a feel of that with what's been happening with WikiLeaks. Imagine a terrorist attack in the United States and think of post-9/11 days and if there was a WikiLeaks that might somehow be considered to be within the realm of some kind of threat. Anyway, the point I'm getting at is this issue of Net neutrality is not just about speed, and it's also about content access. So how do you protect against this?

PARSONS: Well, I think part of the beauty of the Internet as it exists right now is, with the exception of a few points of concentration, it's actually a highly distributed system, and that's where it gets a lot of its resilience from. So I think that, you know, if we can look at that power of the system, where you have lots of different nodes that are under control of different entities or lack of control thereof, then you can start to say, okay, if you've got one path that is going to be using the technology that exists to censor or monitor content, well, there are other paths through the network. And I think those kinds of technologies are what we want to--what we need to start looking at. And how do we continue to push the decentralization and the distribution of the current Internet technology, which has provided--it's provided the ability for WikiLeaks to continue to operate as it has right now? And so I think we just have to continue to push on that, because you're absolutely right, it's not just about throttling speed, although you can effectively shut somebody off by throttling the speed back too much. But there are things like deep packet inspection technology that will allow you to start looking at actually what's going across, and there is nothing that says that that could not continue to be expanded. So we need to look at ways to continue with the distribution and the decentralization of this infrastructure to allow that to be protected.

JAY: So, Tim, if the reasonably free market turns out not to be so reasonable, and in terms of pure market forces you start seeing this Net neutrality in terms of speed, you have different categories, and you even start to have more of these kinds of Amazons deciding we'll take this and not that, at some point do you think there needs to be legislation that ensures Net neutrality?

BRAY: Well, yeah. At the time when some grandstanding politician actually successfully manages to hound something civically interesting like WikiLeaks off the air, then we should start thinking about radical, you know, legislative measures. And we should be vigilant and think, you know, consider alternatives, consider policy alternatives. But, you know, this is not something that's going to be done quickly. These are deep, complex issues that require a lot of thought.

JAY: Okay, we're going to go to a caller. Caller, are you online? Dustin's from Houston. Dustin, are you there?

DUSTIN, CALLER (HOUSTON): Is that Dustin Pitts?

JAY: I think it is. Go ahead. Go ahead with your question.

DUSTIN: Okay. I'm wondering, given the Italian court case with YouTube earlier this year, where are the governments finding the [inaudible] to prosecute these various Internet sites and whatnot? And, I mean, do we need something, a governmental body that can regulate these kinds of cases or what have you?

JAY: Who wants to take on an international question?

BRAY: Well, you know, each government in the world feels it has the right to regulate the behavior of commercial entities operating within its jurisdiction and of its citizens, and quite properly so, I guess. You know, there are deep problems, in that when, you know, some business operations are fundamentally transnational, that's hard to do. And, you know, that--you can see that in a good light, as in the difficulty that the governments of China and Iran find in, you know, regulating the Internet, and you can see that in a bad light, as in the ability of various kinds of pirates and sleazy merchants to set up servers in other parts of the world where it's harder to get at them. You know, it's not a moral slam dunk, one side of the question or the other, and it's something that I don't think we really have a very good handle on an answer for at the moment.

JAY: Marc, let's go back to the basic question. The more you have these mega-Internet presences--Amazon, Facebook, and, I'm sorry, Google, I mean--Amazon as well, but not only on the commercial side is there an issue of whether they start [inaudible] picking winners and losers, but obviously right now this issue of WikiLeaks just raised this whole political question. What kind of legislation would you like to see to stop picking of--you can speak, and you can't.

ROTENBERG: Well, it's a tough issue. I mean, by tradition, the way we have defended freedom of expression in this country has been through the absence of legislation. It's been through a First Amendment principle that says that the government shall not restrict the publication of ideas, even ideas that are, you know, unpopular, and I think it's not a bad starting point. Now, the question that you're raising about the Internet and access to the Internet and the regulation of private actors I think is one that we have to approach carefully. I'm not happy about what Amazon did here. I'm, you know, feeling a bit better knowing that there are options available to WikiLeaks. But we could imagine a world a few years from now where there's continued consolidation. I mean, Google, for example, occupies 65 percent of the search market in the United States, 90 percent of the search market in Europe, which means that that it's the de facto search function for the Internet for a large part of the user base. That's a concern, and I think that's something that needs to be looked at more closely by governments.

JAY: But, again, the point I was making earlier, I think it's actually difficult for Google on their own, under a lot of governmental pressure, to respond, whereas if there's some kind of regulatory framework, Google can say, well, we're not handing it over to you, because--or some constitutional precedent. But I don't know that there is such [inaudible]

ROTENBERG: But at least in The United States, I mean, we had, I thought until a couple of weeks ago, a pretty good way to defend free speech. We have the First Amendment, a very strong constitutional principle, and we have this Section 230 that I referred to earlier, enacted by the Congress in 1996, that gave this very broad immunity to Web-based publishers, actually in some areas greater than what the First Amendment provided. So it seemed that on the free-speech side we were doing very well in the US. I guess what we didn't anticipate was that the government might still come along and basically lean on companies and say, you know, we want you to do certain things because you have certain customers that we don't like. Now, I don't know how we regulate that problem. But that is the problem today, that's essentially what WikiLeaks is confronting, is the decision by the US government, through extralegal means, not using statutory authority, not threatening an indictment, basically leaning on companies and saying, we want you to, you know, toss these disfavored customers off your service.

JAY: And it is a broader question, too. It's very, very difficult, for example, for The Real News to get on cable television. People that own cable TV networks can decide, you know, they're picky--we want you, we don't want you. I mean, that's one of the, I guess, beauties of the Internet, which is why we're on the Internet, is you don't [inaudible]

ROTENBERG: But you have a good alternative. I mean that's part of the excitement about the Internet.

JAY: We do now, and that's the point. We now do. But will we?

ROTENBERG: Right. Well, you should, I think, is the answer. I mean, you know, Real News or WikiLeaks or any other company of any other perspective or view should be welcome online to express its views, and we should do whatever we can, both on the technology side and on the legislative side, to continue to make that possible. But the US government has really thrown out a new challenge this week, and as I said, it's not something that people who've worked in this area for a long time have anticipated.

JAY: Rebecca, given the current politics in Washington, I don't know what legislation one could imagine that would ever pass anyway. So what can technologists do? In terms of people working in this field, is there something that technologists that are concerned about this can do in terms of helping create more alternatives within the technology, within the structure, when these sorts of things happen?

PARSONS: Well, and I think that's where you go back to where the resiliency of the Internet currently comes from, and identifying any points that are more centralized than decentralized. And there is, for example, you know, efforts around trying to propagate DNS capability further, to make that more peer-to-peer, rather than centralized in the way it is right now. And I think as technologists we need to look at various capabilities such as DNS and those core functions that make the Internet accessible and usable and open for the general public and find where those vulnerabilities are. Fortunately, in our business, there are a fair number of people who actually like to think in dastardly ways about, you know, how can I get around problems, how can I figure out problems and then solve them. That's what we're here for as technologists. And I think a more concerted effort of looking at some of the remaining vulnerabilities, in terms of centralization of control, is the primary thing that we as technologists can start looking at.

JAY: So, Tim, does there need to be a little bit more organization of dastardly technologists to proactively create some of these alternatives?

BRAY: Well, the whole Internet has been built with remarkably little organization. There is actually an organization called Internet Engineering Task Force, but it doesn't resemble anything like what most people would think of as an organization. It's a highly disorganized organization. Having said that, I think, you know, that Rebecca hit the nail on the head, that, you know, we have a shared and high level of concern among a lot of Internet technologists just over the events of the last couple of weeks, you know, you know, on not just that the political forces were able to cause this to happen, but they were able to do it on such an incredible flimsy pretext. You know, the case against WikiLeaks is not a slam dunk at all. I mean, you can have an argument over maybe some of the stuff they've done, but, you know, just unilaterally slamming it off the air is not, in most people's view, I think, a sensible course of action. You know, the DNS is a special case. The fact that it is centralized, I think, is regarded by most Internet technologists as an unfortunate 30-year-old bug that we really ought to fix someday. And, you know, we can't, maybe, move quickly on issues of legislation, but I think we can, you know, in our disorganized but organized way, work on making everything that can possibly be decentralized, decentralized, and thus make it increasingly difficult for the events of the last few weeks to be replicated in the future.

JAY: Marc, just to wrap up, the issue of the Patriot Act for example, and I'm not sure how many people are aware, but I just looked myself recently that all my emails on--whether it's a Yahoo! or a Google or something else, after I believe it's 90 days, governments have access to that information on a third-party server without a warrant. They just have to make the request to the Internet company. And I don't think most people know that. So there's kind of two things happening here. One, you have kind of the beginnings of closing the doors to certain kinds of information. On the other hand, all our lives and information's on the Internet, and without us being very aware of how much access governments have to this. Number one, how do we create some kind of framework so people at least know the world they're living in? 'Cause most people don't understand the rules. And then, two, let's get back to this issue, just to wrap up with, is what would you do to kind of--to create an open Internet that isn't also a threat to people's privacy?

ROTENBERG: Well, I think privacy continues to be very important, and I think a lot of people inside of the government, you know, who are living with the consequences of WikiLeaks, probably would not dispute that view. Of course, from my perspective, you know, the privacy of individuals is very different from the secrecy of governments, and I think we do need to do more to protect individual privacy, while, you know, the secrecy of governments we should approach with some skepticism, at least in democratic governments, because democracy thrives in openness and through transparency. As for what happens next with WikiLeaks, I have to say I'm kind of hoping that Congress doesn't legislate, I mean, at least not around this issue, because my suspicion is if Congress were to legislate around WikiLeaks, it would be in a direction we would not favor. And I think the question we do need to come to terms with is whether it's appropriate for governments to try to use these extralegal means to go after speech that they don't like. It's very much against the US tradition to see this happen.

JAY: Well, then, let's--then in terms of the constitutional rights of free press, does WikiLeaks have it or not? WikiLeaks didn't steal anything. They more or less did what The New York Times did.

ROTENBERG: Yes, but--.

JAY: So what's the difference?

ROTENBERG: Look, WikiLeaks is a publisher. There's just no other way to understand the disclosure of this information. They provided information to the public. That is a core definition of what publication is. Now, it's maybe not a publication that's familiar to some more traditional journalists who are expecting finely crafted op-eds, but it's a form of publication that's very much in keeping with the Internet era, and in my view it's core to what freedom of expression is about. So if the question arose, for example, could there be prosecution under the Espionage Act, a law from 1917, which some people have proposed, I'm actually optimistic that that prosecution would fail, because as applied to WikiLeaks, the publisher, I think there would be a successful First Amendment challenge. So even as a legal matter, I think there's a strong defense for WikiLeaks in this situation. It doesn't mean, by the way, you have to agree with what WikiLeaks did, and people sometimes misunderstand this when we're talking about the First Amendment. The First Amendment is not about saying that, you know, good speech is made available. It means all speech is made available, and you and I get to decide what we consider to be good and what's bad. That's a decision that's left to individuals. But as for the prosecution of WikiLeaks, no, that doesn't happen, because the First Amendment would prevent that.

JAY: We'll see.

ROTENBERG: I hope so.

JAY: Thanks very much for joining us, all of you. And thank you for joining us on The Real News Network. And don't forget, if you like this and would like to see more of this--well, first of all I'm going to ask all our guests to participate on our website. So if you want to make comments and ask questions underneath the player here, I'm hoping our guests will come, they'll take a look themselves, and they'll respond to some of your questions in the comments section. Don't forget, this is part of our Real News Webathon, and if you want to make a donation, you can do it by clicking donate here, or you can call 888-449-6772. Thanks very much for joining us on Real News Network. We're going to take a short break, and then we'll be back.

End of Transcript

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