Wednesday, December 8, 2010

Hackers Give Web Companies a Test of Free Speech

Hackers Give Web Companies a Test of Free Speech

Published: December 8, 2010

MasterCard's Web site would not load after hackers attacked it. MasterCard had blocked donations to WikiLeaks.

On Wednesday, anonymous hackers took aim at companies perceived to have harmed WikiLeaks after its release of a flood of confidential diplomatic documents. MasterCard,Visa and PayPal, which had cut off people’s ability to donate money to WikiLeaks, were hit by attacks that tried to block access to the companies’ Web sites and services.
To organize their efforts, the hackers have turned to sites like Facebook and Twitter. That has drawn these Web giants into the fray and created a precarious situation for them.
Both Facebook and Twitter — but particularly Twitter — have received praise in recent years as outlets for free speech. Governments trying to control the flow of information have found it difficult to block people from voicing their concerns or setting up meetings through the sites.
At the same time, both Facebook and Twitter have corporate aspirations that hinge on their ability to serve as ad platforms for other companies. This leaves them with tough public relations and business decisions around how they should handle situations as politically charged as the WikiLeaks developments.
Some internet experts say the situation highlights the complexities of free speech issues on the Internet, as grassroots Web companies evolve and take central control over what their users can make public. Clay Shirky, who studies the Internet and teaches at New York University, said that although the Web is the new public sphere, it is actually “a corporate sphere that tolerates public speech.”
Marcia Hofmann, a lawyer at the Electronic Frontier Foundation, said, “Any Internet user who cares about free speech or has a controversial or unpopular message should be concerned about the fact that intermediaries might not let them express it.”
She added, “Your free speech rights are only as strong as the weakest intermediary.”
The problem came into relief on Wednesday, when a group calling itself Anonymous started Operation Payback. The group spent much of the day posting notes on Facebook and Twitter that told followers which companies to single out and that documented hacking successes.
But Facebook banned one of the group’s pages, saying that using the site to organize hacking attacks like that violated its terms of use. The group went on Twitter to complain.
A Facebook spokesman issued a statement saying that the company was “sensitive to content that includes pornography, bullying, hate speech, and threats of violence” and would “take action on content that we find or that’s reported to us that promotes unlawful activity.”
In an interview Wednesday morning, Joe Sullivan, Facebook’s chief security officer, addressed WikiLeaks’s own presence on the site. He said the company had not received any official requests to disable pages or accounts associated with the WikiLeaks organization.
Facebook generally resists requests by governments or advocacy groups to take down material if that content is not illegal or does not violate Facebook’s terms of service, which prohibit attacks on individuals or incitements to violence.
“Facebook is a place where people come to talk about all sorts of things, including controversial topics,” Mr. Sullivan said. It was not clear whether anyone had asked Facebook to take down the Operation Payback page.
Twitter allowed the Operation Payback account to stay active most of Wednesday. But the group’s account was disabled late in the day, after it posted a link to a file that provided thousands of consumer credit card numbers, according to a person with direct knowledge of the situation.
A Twitter spokesman declined to discuss the details of the situation.
“We don’t comment about the specific actions we take around user accounts,” he said.
The company is not overly concerned about hackers’ attacking Twitter’s site, he said, explaining that it faces security issues all the time and has technology to deal with the situation.
Twitter is in a particularly delicate situation because its founders have celebrated their service’s role in political protest and free speech. They have not been shy about trying to capitalize on the good will engendered by playing that role.
WikiLeaks’s own Twitter account remains active, and it is the group’s main channel for reaching supporters and the media.
Last week, fell into a similar position when it decided to stop storing files for WikiLeaks. Advocates of WikiLeaks complained that was bowing to political pressure to cut the organization from its Web services. An spokesman said the company was simply banning an organization that had violated its terms of service by trying to distribute documents it did not own.
The last week has given rise to a hacking war in which groups have blocked access to WikiLeaks’s Web sites by bombarding them with requests.
And now the WikiLeaks supporters have responded in kind, flying the freedom of speech banner as the motivation for their actions.
Claire Cain Miller contributed reporting.

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 ofCRS' 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.

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