Two important articles by the EFF about the Internet freedom in the Wikileaks context

Information is the Antidote to Fear: Wikileaks, the Law, and You 

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.

Join EFF in Standing up Against Internet Censorship

Call To Action by Shari Steele  for the EFF

Over the past few weeks, we here at EFF have watched as whistleblowing website WikiLeaks has fueled an emotionally charged debate about the secrecy of government information and the people's right to know. We have welcomed this debate, and the fact that there have been myriad views is the embodiment of the freedom of expression upon which this country was founded.

However, we've been greatly troubled by a recent shift in focus. The debate about the wisdom of releasing secret government documents has turned into a massive attack on the right of intermediaries to publish truthful information. Suddenly, WikiLeaks has become the Internet's scapegoat, with a Who's Who of American and foreign companies choosing to shun the site.

Let's be clear — in the United States, at least, WikiLeaks has a fundamental right to publish truthful political information. And equally important, Internet users have a fundamental right to read that information and voice their opinions about it. We live in a society that values freedom of expression and shuns censorship. Unfortunately, those values are only as strong as the will to support them — a will that seems to be dwindling now in an alarming way.

On Friday, we wrote about Amazon's disappointing decision to yank hosting services from WikiLeaks after a phone call from a senator's office. Since then, a cascade of companies and organizations has backed away from WikiLeaks. A public figure called for the assassination of WikiLeaks founder Julian Assange. PayPal, MasterCard, and Visa axed WikiLeaks’ accounts. EveryDNS.net pulled Wikileaks’ DNS services. Unknown sources continue to cripple WikiLeaks with repeated denial of service attacks. Even the Library of Congress, normally a bastion of public access to information, is blocking WikiLeaks.

There has been a tremendous backlash against WikiLeaks from governments around the world. In the United States, lawmakers have rashly proposed a law that threatens legitimate news reporting well beyond WikiLeaks. We expect to see similar efforts in other countries. Like it or not, WikiLeaks has become the emblem for one of the most important battles for our rights that is likely to come along in our lifetimes. We cannot sit this one out. 

Join EFF in standing up against Internet censorship.

Download our No Censorship button to display on your websites and social networking profiles. Show the world that you are committed to free expression and denounce censorship.

Big Brother versus Indymedia

CBS news blog reports:

In a case that raises questions about online journalism and privacy rights, the U.S. Department of Justice sent a formal request to an independent news site ordering it to provide details of all reader visits on a certain day.

The grand jury subpoena also required the Philadelphia-based Indymedia.us Web site "not to disclose the existence of this request" unless authorized by the Justice Department, a gag order that presents an unusual quandary for any news organization.

Kristina Clair, a 34-year old Linux administrator living in Philadelphia who provides free server space for Indymedia.us, said she was shocked to receive the Justice Department's subpoena. (The Independent Media Center is a left-of-center amalgamation of journalists and advocates that – according to their principles of unity and mission statement – work toward "promoting social and economic justice" and "social change.")

The subpoena (PDF) from U.S. Attorney Tim Morrison in Indianapolis demanded "all IP traffic to and from www.indymedia.us" on June 25, 2008. It instructed Clair to "include IP addresses, times, and any other identifying information," including e-mail addresses, physical addresses, registered accounts, and Indymedia readers' Social Security Numbers, bank account numbers, credit card numbers, and so on.

"I didn't think anything we were doing was worthy of any (federal) attention," Clair said in a telephone interview with CBSNews.com on Monday. After talking to other Indymedia volunteers, Clair ended up calling the Electronic Frontier Foundation in San Francisco, which represented her at no cost.

Under long-standing Justice Department guidelines, subpoenas to members of the news media are supposed to receive special treatment. One portion of the guidelines, for instance, says that "no subpoena may be issued to any member of the news media" without "the express authorization of the attorney general" – that would be current attorney general Eric Holder – and subpoenas should be "directed at material information regarding a limited subject matter."

Still unclear is what criminal investigation U.S. Attorney Morrison was pursuing. Last Friday, a spokeswoman initially promised a response, but Morrison sent e-mail on Monday evening saying: "We have no comment." The Justice Department in Washington, D.C. also declined to respond.

Kevin Bankston, a senior staff attorney at the San Francisco-based Electronic Frontier Foundation, replied to the Justice Department on behalf of his client in a February 2009 letter (PDF) outlining what he described as a series of problems with the subpoena, including that it was not personally served, that a judge-issued court order would be required for the full logs, and that Indymedia did not store logs in the first place.

Morrison replied in a one-sentence letter saying the subpoena had been withdrawn. Around the same time, according to the EFF, the group had a series of discussions with assistant U.S. attorneys in Morrison's office who threatened Clair with possible prosecution for obstruction of justice if she disclosed the existence of the already-withdrawn subpoena -- claiming it "may endanger someone's health" and would have a "human cost."

Lucy Dalglish, the executive director of the Reporters Committee for Freedom of The Press, said a gag order to a news organization wouldn't stand up in court: "If you get a subpoena and you're a journalist, they can't gag you."

Dalglish said that a subpoena being issued and withdrawn is not unprecedented. "I have seen any number of these things withdrawn when counsel for someone who is claiming a reporter's privilege says, 'Can you tell me the date you got approval from the attorney general's office'... I'm willing to chalk this up to bad lawyering on the part of the DOJ, or just not thinking."

Making this investigation more mysterious is that Indymedia.us is an aggregation site, meaning articles that appear on it were published somewhere else first, and there's no hint about what sparked the criminal probe. Clair, the system administrator, says that no IP (Internet Protocol) addresses are recorded for Indymedia.us, and non-IP address logs are kept for a few weeks and then discarded.

EFF's Bankston wrote a second letter to the government saying that, if it needed to muzzle Indymedia, it should apply for a gag order under the section of federal law that clearly permits such an order to be issued. Bankston's plan: To challenge that law on First Amendment grounds.

But the Justice Department never replied. "This is the first time we've seen them try to get the IP address of everyone who visited a particular site," Bankston said. "That it was a news organization was an additional troubling fact that implicates First Amendment rights."

This is not, however, the first time that the Feds have focused on Indymedia -- a Web site whose authors sometimes blur the line between journalism, advocacy, and on-the-streets activism. In 2004, the Justice Department sent a grand jury subpoena asking for information about who posted lists of Republican delegates while urging they be given an unwelcome reception at the party's convention in New York City that year. A Indymedia hosting service in Texas once received a subpoena asking for server logs in relation to an investigation of an attempted murder in Italy.

Bankston has written a longer description of the exchange of letters with the Justice Department, which he hopes will raise awareness of how others should respond to similar legal demands for Web logs, customer records, and compulsory silence. "Our fear is that this kind of bogus gag order is much more common than one would hope, considering they're legally baseless," Bankston says. "We're telling this story in hopes that more providers will press back and go public when the government demands their silence."

Update 1:59pm E.T.: A Justice Department official familiar with this subpoena just told me that the attorney general's office never saw it and that it had not been submitted to the department's headquarters in Washington, D.C. for review. If that's correct, it suggests that U.S. Attorney Tim Morrison and Assistant U.S. Attorney Doris Pryor did not follow department regulations requiring the "express authorization of the attorney general" for media subpoenas -- and it means that neither Attorney General Eric Holder nor Acting Attorney General Mark Filip were involved. I wouldn't be surprised to see an internal investigation by the Office of Professional Responsibility; my source would not confirm or deny that.