On December 1, Carl Brooks of TechTarget published a piece entitled “Amazon boots WikiLeaks under pressure from U.S. Senator.” Yesterday he implored them to release a statement about what actually happened. I agree with him. I’d like to know what happened, replacing rampant speculation with as many facts as possible. Perhaps the delay is to permit Amazon’s lawyers time to sort this out, especially if it’s true that Lieberman interfered. It also may be true that their shutting WikiLeaks down has legal implications for them under DMCA Safe Harbor provisions. As stated by the chillingeffects.org DMCA Safe Harbor page:
In order to qualify for safe harbor protection, a service provider who hosts content must:
- have no knowledge of, or financial benefit from, infringing activity on its network
- have a copyright policy and provide proper notification of that policy to its subscribers
- list an agent to deal with copyright complaints
Safe Harbor is derived from common carrier doctrine and federal laws, which prevent communications companies from being held responsible for the content their users transmit. Slate has an interesting article about AT&T jeopardizing it’s common carrier status by picking & choosing content via filters. I can see how these ex post facto actions by Amazon, retroactively changing the terms of service, would carry the same consequences.
This action against WikiLeaks, unless done in cooperation with law enforcement (which Lieberman is not), may constitute policing their network for content. Policing content that implies that they know what other content is on their network, too, and they approve of it (else they would have terminated those customers, too). That disqualifies them from Safe Harbor protection and any protections for common carriers under U.S. Federal law and makes them liable for the content on their network. Classified documents? Now it’s Amazon’s problem. Child porn? Amazon’s problem. Pirated software? Amazon’s problem.
To me, though, this is a great example of the fears people have about public clouds. In a private cloud you’re doing business mostly on your own terms. If someone wants to mess with you and shut you down they have just a few methods for doing it, and most of the time you’d know that they’ve gained access to your hosts. Sure, your network provider has terms which could be changed, but you can defend against that with multiple providers. They also won’t have all your data if they do take action.
If the rules are malleable, like this whole episode suggests, it is a better idea to keep your IT to yourself in your own, private, cloud.
Update: Amazon did issue a message, and while I agree that what WikiLeaks is doing is harmful to people trying to do some good in the world, I am not as sure as Amazon about it being clear about who owns what content, or that it would cause injury. That alone makes me nervous about the public cloud. Lots of things cause perceived or real injury; why is Amazon the arbiter of these things and not the judicial system?