I?ve written several times on Wikileaks over the past year-and-half. In this piece I draw together and update my thoughts on Wikileaks in light of recent developments, with a focus on how concentration of ownership and control over critical internet resources (internet access, domain name registries, webhosting sites, payment services, etc.) and the business models of social media companies such as Twitter compromise freedom of expression and the press on the Internet, with Wikileaks serving to illustrate the point.
What follows is a first draft of a chapter that I have written for a forthcoming book edited by?Benedetta Brevini, Arne Hintz and Patrick McCurdy.?Beyond Wikileaks:?Implications for the Future of Communications, Journalism and Society.?I would be delighted to hear any constructive comments and criticisms you might have.
In his seminal piece on Wikileaks, Yochai Benkler (2011) makes a compelling case for why Wikileaks is a vital element of the networked fourth estate, and why we should view its harsh treatment by the U.S. government as a threat to the free press. As he says, the case embodies a struggle for the soul of the internet, a battle that is being waged through both legal and extralegal means, with major corporate actors ? Apple, Amazon, eBay (Paypal), Bank of America (Visa), Mastercard, etc. ? using their control over critical internet resources to lean in heavily on the side of the state and against Wikileaks.
This piece reviews Benkler?s case for seeing Wikileaks as an crucial element of the networked free press, adds a few details to it, then presents an important new element to the story: the role that Twitter, the social media site, has played in what I will call the Twitter ? Wikileaks cases. In contrast to the pliant commercial interests that Benkler discusses, Twitter fought hard in a series of legal cases during the last year-and-a-half to avoid having to turn over subscriber account information for several people of interest to the U.S. Department of Justice?s ongoing Wikileaks investigation: Birgitta J?nsd?ttir, an Icelandic MP and co-producer of the Collateral Murder video whose distribution over the internet by Wikileaks put it, and her, on a collision course with the U.S. to begin with, Wikileaks? volunteer and Tor developer, Jacob Applebaum, and the Dutch hacktivist Rop Gongrijp.
The DoJ?s ?secret orders? raise urgent questions about state secrets and transparency, the rule of law, internet users? communication rights, and the role of commercial entities that control critical internet resources. The Twitter ? Wikileaks cases also cut to the heart of journalism in light of how journalists routinely use social media such as Twitter and Facebook, but also search engines and internet access services, to access sources, share information, and generally to create and circulate the news.
Wikileaks and the Emergence of Next Generation Internet Controls
Information filtering, blocking and censorship have been the hallmark of China?s model of the internet since the 1990s. Now, however, we are at critical juncture in the evolution of the Internet, with the United States government?s anti-Wikileaks campaign showcasing how such methods are being augmented by a wide range of legal and extra-legal methods in capitalist democracies. Indeed, governments the world over now rely on multidimensional approaches that use technical tools to filter and block access to certain kinds of content while normalizing internet control through legislation and by out-sourcing or privatizing such controls to commercial internet companies (Deibert & Rohozinski, 2011, pp. 4-7). Among other things, the Wikileaks case shows that such actors are often all-too-willing to serve the state on bended knees, albeit with some important exceptions to the rule as the Twitter ? Wikileaks cases discussed later in this chapter illustrate.
Three intertwined tendencies are stoking the shift to a more controlled and regulable internet. First, the concentration of ownership and control over critical internet resources is increasing: incumbent cable and telecom firms? dominate internet access, while a few internet giants do the same with respect to search (Google), social media platforms (Facebook, Twitter), over-the-top services (Apple, Netflix), webhosting and data storage sites (Amazon) and payment services (Visa, Master Card, Paypal), among others. Simply put, more concentrated media are more easily regulable than many players operating in a more heterogeneous environment. Second, the media and entertainment industries have scored victories in Australia, UK, NZ, US, Taiwan, South Korea, France and a handful of other countries for three-strikes rules that require Internet Service Providers (ISPs) to cut-off internet users who repeatedly run afoul of copyright laws. A 2011 UN report condemned these measures as disproportionate and at odds with the internet?s status under the right to communication set out in Article 19 of the Universal Declaration of Human Rights (1948), but they remain operative nonetheless (La Rue, 2011). Lastly, the internet is being steadily integrated into national security and military doctrines, with thirty or so countries, notably the US, Russia and China, leading the push (U.S. Congressional Research Service, 2004). The U.S. Department of Defense?s revised ?information operations? doctrine in 2003, for instance, defines the internet (cyberspace) as the fifth frontier of warfare, after land, sea, air and space (United States, Department of Defense, 2003). National security and law enforcement interests are also central in new laws currently being considered in the US (CISPA), Canada (Bill C-30) and the UK (Communications Data Bill).
These trends are increasing the pressure to turn Internet Service Providers (ISPs) and digital intermediaries into gate-keepers working on behalf of other interests, whether of the copyright industries or law enforcement and national security. This drift of events is already bending the relatively open internet, with its decentralized architecture pushing control to the ends of the network and into users? hands, into a more closed and controlled model. Such trends are not new, but they are becoming more intense and firmly entrenched in authoritarian countries and liberal capitalist democracies alike. This is the big context within which the anti-Wikileaks campaign led by the U.S. government has unfolded.
Wikileaks and the Networked Free Press
There are counter-currents to these trends as well, and one of those is the rise of Wikileaks in the heart of the networked free press, just at a time when the press is struggling to find a sturdy footing in the internet-centric media ecology. While it is common to bemoan the crisis of journalism, Benkler (2011) strikes a cautiously optimistic note, laying the blame for the ongoing turmoil among traditional news outlets on their own self-inflicted wounds that have festered since the 1980s.?The rise of the internet and the changing technological and economic basis of the media magnifies these problems, he argues, but the internet is not responsible for them. In fact, nascent forms of non-profit, crowd-sourced and investigative journalism may be improving the quality of journalism.
Wikileaks is part and parcel of these trends. In the events that put it on a collision course with the U.S. government, the whistle-blowing site burnished its journalistic credentials by working hand-in-glove, at least after the ?collateral murder? video, with The Guardian,?the New York Times,?Der Speigel,?Le Monde and?El Pais to select, edit and publish the Afghan and Iraq war logs and embassy cables. By cooperating with respected journalistic organizations, Wikileaks material was selected, edited and published according to professional news values rather than driven solely by the logic of hactivism or being an indiscriminate and irresponsible dump of sensitive state secrets into the public domain. The collaboration between traditional news outlets and Wikileaks also demonstrated that gaining access to large audiences in a cluttered media environment still requires ?big media?. Altogether, these efforts set the global news agenda four times in 2010. For its efforts, Wikileaks chalked up a bevy of presitgious awards for its significant contributions to access to information, transparency and journalism, adding to the long list of honours that it had already won from press and human rights organizations, including from British-based Index on Censorship, Amnesty International and Time Magazine, among many others, since its inception (see Wikileaks Press, nd).
Interestingly, while Wikileaks had been offering journalists free access to the war logs and embassy cables for some time, it was only after it offered exclusive national rights to The Guardian, New York Times, and other major newspapers around the world that journalists showed much of an interest. Rights, money, and market power are still important lures, and are cornerstones of market-based media, with or without the internet ? although it is important that Wikileaks certainly does not follow the conventional commercial model, and offers an alternative to it.
The more important point for now, however, is that investigative journalism is not the exclusive preserve of the traditional press, but it is the signature feature of what Wikileaks does. That the interjection of Wikileaks into the journalistic process led to outcomes that are probably better than the ?good ole days? is underscored by the fact that while the New York Times consulted with the Obama Administration before publishing the war logs and diplomatic cables, it did not withhold the material for a year. Indeed, this is a big and important difference from its behaviour in 2005 when, at the behest of the Bush Administration, the New York Times delayed James Risen and Eric Lichtblau?s (2006) expose of unauthorized, secret wiretaps conducted by the National Security Agency in cooperation with AT&T, Verizon and almost all of the other major telecom-ISPs in the U.S. (Calame, 2006). The war logs and embassy cables stories likely became headline news in 2010 faster than would otherwise have been the case because of Wikileaks role in these events, and its strategy of playing news organizations? competitive commercial interests off of one another. Moreover, with little need to maintain good standing with the centres of political, military and corporate power, Wikileaks never assumed levels of deference similar to the New York Times and other established news sources.
All-in-all, Wikileaks is emblematic of a broader set of changes that, once the dust settles, will likely stabilize around a new model of the networked fourth estate, an assemblage of elements consisting of (1) a core group of strong traditional media companies; (2) many small commercial media (Huffington Post, the Tyee, Drudge Report, Global Journalist, etc.), (3) non-profit media (WikiLeaks, Wikipedia), (4) partisan media outlets (Rabble.ca, Daily Kos, TalkingPointsMemo), (5) hybrids that mix features of all the others and (6) networked individuals (Benkler, 2009). The fact that WikiLeaks is so central to these developments, and so solidly at one with journalistic and free press traditions, helps to explain why neither it nor any of the newspaper organizations it partnered with have faced direct efforts by the U.S. to suppress the publication of WikiLeaks? documents (Benkler, 2011). If the story ended here, it would be a happy one, a triumph of a plucky, determined watchdog willing to take on the powers-that-be, without fear or favour, a testimony to the power of the internet to contribute to freedom of expression, the free press and the public?s right to know ? in other words, democracy.
Using Ownership and Control of Critical Internet Resources to Cripple Wikileaks
Unfortunately, however, the story does not end there. The problem, as Benkler (2011) states, is that what the U.S. was not able to obtain by legal measures, it gained with remarkable ease from private corporations and market forces. Thus, buckling under the slightest of pressure, Amazon banished Wikileaks? content from its servers the same day (December 1, 2010) that Senator and Senate Committee on Homeland Security and Governmental Affairs Chair, Joe Lieberman (2010), called on any ?company or organization that is hosting Wikeleaks to immediately terminate its relationship with them?. Wikileaks quickly found a new home at webserver firm OVH in France but lost access to those resources after France?s Industry Minister warned companies on December 4 that there would be ?consequences? for helping keep Wikileaks online. A day later, the Swedish-based Pirate Party stepped in to host the ?cablegate? directory after they were taken off line in France and the US.
Yet, Wikileaks? troubles didn?t end there because just a day before it was kicked out of France, the U.S. company everyDNS delisted it from its domain name registry. As a result, Internet users who typed wikileaks.org into their browser or clicked on links pointing to that domain came up with a page indicating that the site was no longer available (Benkler, 2011; Arthur, 2011). The Swedish DNS provider, Switch, faced similar pressure, but refused to buckle. It continues to maintain the WikiLeaks.ch address that?Internet users still use to access the site, but has faced a barrage of Distributed Denial of Service (DDoS) attacks for doing so.
As Amazon, OVD and everyDNS took out part of WikiLeaks technical infrastructure, several other companies moved into to disable is financial underpinnings. Over the course of four days, Paypal (eBay) (December 4), MasterCard and the Swiss Postal Office?s PostFinance (December 6), and Visa (December 7) suspended payment services for donors to the site. Two weeks later, Apple removed a Wikileaks app from the iTunes store (Apple removes Wikileaks, 2010). Thus, within a remarkably short period of time, a range of private actors cut-off Wikileaks? access to critical internet resources. The actions did not kill the organization, but the financial blockade did contribute mightily to the fact that Wikileaks funding plummeted by an estimated 95 percent (Wikileaks, 2011).
Privacy Rights Online and Internet Companies? Business Models: Weak Foundations for the Networked Fourth Estate and Communication Rights
One important entity has stood outside this state-corporate triste on the outskirts of the law: Twitter. Indeed, it has stood alone among big American corporate internet media brands in refusing to assist the United States? anti-Wikileaks campaign. Faced with a court order to secretly disclose subscriber information for three of its users, it said no.
In December 2010, at the same times as Wikileaks was being cut-off from critical internet resources, the US Department of Justice demanded that Twitter turn over subscriber account information for Birgitta J?nsd?ttir, Jacob Applebaum and Rop Gongrijp as part of its ongoing Wikileaks investigation. The information sought was not innocuous and general, but intimate and extensive: i.e. subscriber registration pages, connection records, length of service, Internet device identification number, source and destination Internet protocol addresses, and more (United States, 2011a, pp. 7-8). Twitter was also told not to disclose the request to the people concerned, and to stay quiet about the whole thing. It did none of this.
Instead, the company mounted a serious legal challenge to the Justice Department?s ?secret orders? and pushed the envelope in interpreting what it could do to protect its subscribers? information (McCullagh, 2011). In Twitter ? Wikileaks Case #1, the social media site won a small victory by gaining the right to at least tell J?nsd?ttir, Applebaum and Gongrijp that the DoJ was seeking information about their accounts (United States, 2010). They were given 10 days to respond before it was compelled to comply with the DoJ order. It also took the extra step of recommending that they seek legal help from the Electronic Frontier Foundation (EFF), a public interest law watchdog on all matters digital and about internet/cyberspace governance (a copy of Twitter?s letter to Gongrijp is available at Gongrijp, 2011).
The EFF has represented Josdottir on the matter since, while Twitter?s lead counsel, Alex MacGillvray, has stood for the company. Interestingly, Iceland has also weighed in by strongly criticizing the US over J?nsd?ttir, while a group of 85 European Union Parliamentarians condemned the United States? pursuit of Wikileaks. They were especially critical about how the US was harnessing internet giants to its campaign. They ?failed to see? how, among other things, the Twitter Order could be squared with Article 19 of the Universal Declaration of Human Rights. More to the point, they worried the United States? actions were contributing to the rise of a
?national and international legal framework concerning the use of . . . social media . . . [that] does not appear to provide sufficient . . . respect for freedom of expression, access to information and the right to privacy? (Intra-Parliamentary Union, 2011).
The first Twitter ? Wikileaks case, or ?Twitter Order?, was a shallow victory. It allowed the company to inform J?nsd?ttir, Applebaum and Gongrijp that they were of interest in the DoJ?s ongoing Wikileaks investigation, but did not prevent the disclosure. Yet, even this shallow victory looks positive relative to how easily Amazon, Apple, eBay (Paypal), Mastercard, Bank of America (Visa), everyDNS, etc. enlisted in the United States? campaign against Wikileaks. Twitter staked out a decidedly different position that insisted upon the rule-of-law, speaking out in public and going beyond what was necessary to help its subscribers ensure that their rights, and personal information, are respected.
The full perversity of these circumstancs only came fully into light in the Twitter ? Wikileaks Case #2, when J?nsd?ttir, Applebaum and Gongrijp appealed part of the first case to overturn, and thus prevent, the requirement that Twitter hand over their account details to the DoJ (United States, 2011a). The U.S. District Court?s decision in the case in November 2011 had direct results and some potentially far sweeping implications.
The first direct result, as we have seen, is that Twitter had to hand over J?nsd?ttir, Applebaum and Gongrijp?s subscriber information. Another, however, is that they have no right to know whether the DoJ has approached Facebook, Google or other Internet companies with secret orders, and if so, for what kinds of information, and with what results (p. 52). The courts seem to believe that neither they nor the public-at-large have the right to know the answers to these questions. For their part, Google, Facebook and Microsoft (Skype) have stayed silent on the affair despite their frequent pontification about internet freedom in a generic sense and mostly in relation to ?axis of internet evil? countries, such as Saudi Arabia, China, Russia and Iran, among a rotating cast of others.
If these results are not discouraging enough, more sweeping implications flow from two other directions in the second Twitter ? Wikileaks ruling. The first is the poor analogy the court draws between the internet and banks to ground its decision as to why companies of the former type must hand over subscribers? information just as readily as the latter do when served with a court order. There is a lot of potential discussion in this point alone, but for now it suffices to say that thinking about social media in terms of banking, insurance and clients is a long way from comprehending the internet as a public communications space.
Of more interest for here is the mind-boggling claim that internet users forfeit any expectation of privacy ? and hence, privacy rights ? once they click to accept internet companies? terms of service policy. As the court put it, J?nsd?ttir, Applebaum and Gongrijp ?voluntarily relinquished any reasonable expectation of privacy? as soon as they clicked on Twitter?s terms of service (United States, 2011a, p. 28). Thus, instead of constitutional values, law or social norms governing the situation, the court ruled that privacy rights are creatures of social media companies? business models. Social media users, according to the court, would have to be woefully naive to expect that privacy is a priority value for advertising-driven online media, given that almost the entire business model of major Internet companies is about collecting and selling as much information about audiences as possible.
But this is ridiculous because Twitter, Facebook and Google?s terms of service policies are about maximizing the collection, retention, use and commodification of personal data, not privacy. It is as if the ruling is intentionally out of whack with the political economy of the internet so as to give the state carte blanche to do with digital intermediaries as it pleases. Christopher Soghoian?(2011) captures the crux of the issue in relation to Google, but his comments apply to Internet companies in general:
Google?s services are not secure by default, and, because the company?s business model depends upon the monetizaton of user data, the company keeps as much data as possible about the activities of its users. These detailed records are not just useful to Google?s engineers and advertising teams, but are also a juicy target for law enforcement agencies.
Conclusions and Implications: Wikileaks, the Networked Fourth Estate and the Internet on Imperiled Ground
Things don?t have to be this way. The idea that privacy rights turn on the terms of service policies of commercial internet companies rests upon a peculiarly squinty-eyed view of things and leverages the mass production and storage of personal data enabled by Twitter, Facebook, Google and so forth for the advantage of the state. But even if we took corporate behaviour as our moral compass, Twitter has occasionally distinguished itself, as it did during the London riots/uprising in August 2011 by refusing to comply with the UK government?s requests to shutdown its service and handover users? information, while Facebook complied.?Thus, even by the standards of corporate behaviour, Twitter?s behaviour could cultivate a higher sense of privacy amongst its users.
Concentrated Internet Markets and Small Details: Changing the business model of internet companies to minimize?the collection, retention and disclosure of personal information, as the EFF?recommends and as some?non-commercial?sites such as IndyMedia?sources?do, would be helpful. Sonic.net, a small ISP with 45,000 internet subscribers in the San Francisco area, and which is also implicated in the Wikileaks case because Jacob Applebaum, a key figure in the Twitter ? Wikileaks case, as we saw above, has been one of its subscribers, does just this. Most ISPs, in contrast, take the opposite view, as a cursory review of the terms of service policies from AT&T, Comcast. Verizon and Time Warner ? the big four ISPs in the U.S. that account for just over 60% of internet access revenues (Noam, 2012) ? illustrates. While Sonic.net may offer a model of a free and open internet that maximizes its users? privacy by minimizing data collection and retention, the fact of the matter is that with less than .05 percent of the US internet subscriber base, it is easily ignored.
Ultimately, the relevant measuring rod of communication rights is not corporate behaviour or the market, but legal and international norms. Social norms govern how we disclose personal information in complex, negotiated and contingent ways, as well (Nissenbaum, 2011). Internet companies? terms of service policies and the Twitter ? Wikileaks cases largely ignore these realities, and thus are out of touch. These issues as well as the fact that the vast majority of people do not even read online terms of service policies ? and those who do more often than not do not fully understand them ? were brought to the court?s attention, but brushed aside. The decision at least makes it clear that?the hyper-commercialized ?free lunch? model of the Internet comes with a steep price: our privacy rights and an entire industrial arrangement poised to serve as the handmaiden of the national security state.
The Virtues and Vices of Twitter: It is against this backdrop that the significance of what Twitter has done is clear. It has not flouted the law, but has been hoisted upon its own petard on account of its ?business model?. But this is an irreconcilable contradiction of capitalism, to use a marxist formulation, and won?t be solved by simply changing Twitter?s business model. Nonetheless, Twitter went beyond just complying with the law to afford as much respect for users? rights as circumstances allowed. We might also ask if Twitter?s recent adoption of a ?transparency report? chronicling government requests for user information and to take-down certain content reflect lessons learned by the company in the midst of the anti-Wikileaks campaign as well?
There is no need to pretend that Twitter is the epitome of virtue, because it is not. While Google, WordPress and others have all signed on to the broad statements of principles regarding privacy and online free speech rights in the Global Network Initiative, for example, Twitter, along with Facebook, has not. But in this area, pontificating is rife, and while Google preaches transparency and open information absolutism, it has said nothing direct or substantial about the U.S.?s treatment of Wikileaks, or even if it has been implicated in the campaign.
Deepening National Security Imperatives: The U.S. governments? campaign against Wikileaks further entrenches the post 9-11 securitization of the telecom-internet infrastructure, in the U.S. and globally, given the reach of the most well-known US telecom and internet giants (Risen & Lichtblau, 2006; Calame, 2006). Some courts have condemned expansive claims of state secrets and unbound executive powers when it comes to national security matters, but others seem to grant the state a blank cheque (United States, 2006; United States, 2011b). When the law has not proved serviceable, as the earlier discussion suggests, important U.S. government figures have tip-toed around its edges, compliant private companies in tow, to get what it wants. Congress has also stepped in occasionally to make legal what before was not, as in the passage of the much revised and expanded Foreign Intelligence Services Act (FISA) in 2008, which is now up for renewal again and set to pass with little opposition in Congress (United States, 2008).
The Global Dimension: The campaign against Wikileaks cannot be kept to narrow confines and readily spills over into wide ranging areas, including diplomatic and global internet policy angles, too. Nation-States, and the US in particular, are flexing their muscles and attempting to assert their sovereignty over cyberspace ? a point that defines the Wikileaks case. Scholars such as Lawrence Lessig, Ropald Diebert, Jonathan Zittrain, Jack Goldsmith and Timothy Wu, among many others, have long shown that cyberspace is no more immune to government intervention than you or are I are immune to the laws of gravity. Struggles over the Internet Corporation for the Assignment of Names and Numbers (ICANN), the rift between Google and China, and the United State?s campaign against Wikileaks clearly expose that fallacy for what it is. Legitimate criticisms of U.S. dominance of critical internet resources has been a staple of global internet politics since the ITU?s tussles with ICANN in the late 1990s, through WSIS I & II (2001 ? 2005), to the creation of the Internet Governance Forum (2005), and back again to the ITU in 2012 (Mueller, 2010). The Wikileaks case offers a rational basis for such concerns. Criticisms of the U.S. in the Wikileaks case by EU parliamentarians, for instance, are of this kind.? The Guardian newspaper in the UK made the same point, too, by choosing J?nsd?ttir, Assange, Applebaum and Twitter?s chief legal counsel, Alex MacGillvray, for its list of twenty ?champions of the open internet? in April 2012 (Ball, 2012). Many of the awards bestowed upon Wikileaks by respectable human rights and free press organizations before and after the organization?s Collateral Murder video, war logs and Embassy Cables trilogy in 2010 are of a similar kind.
The problem, however, is that legitimate criticism are often mangled when mixed with attempts by strong states in authoritarian countries to use them as a Trojan Horse to smuggle in even less appealing attempts to dominate their own sovereign slices of the internet. A balkanized collection of Web 3.0, nationally-integrated internet media spaces is the result. ?To the extent that the anti-Wikileaks campaign feeds such a pretext and fuels the ?clash of sovereigns? on the internet, it is unhelpful.
At the opposite end of the spectrum, the Twitter-Wikileaks rulings may serve the U.S. government?s bid to drive Wikileaks out of business well, but they have also lit a fire in the belly of hactivist groups like Anonymous and LulzSec, for whom such things are their raison d?etre. It may not be too much to suggest that the whiff of the anti-Wikileaks campaign fresh in the air helped to bring about the demise of recent attempts to strengthen national and international copyright laws ? e.g. SOPA, PIPA and ACTA ? given that, like the campaign against Wikileaks, each sought to leverage critical internet resources to control content and further restrict what people can do with their internet connections. If that, in fact, is the case, perhaps the battering of Wikileaks may have unintentionally served a noble cause.
Perhaps we can take solace in that and the fact that the distributed nature of the Internet means complete copies of Wikileaks files have been scattered across the planet, beyond the reach of any single state, no matter how powerful: the ultimate free speech trump card in a way. Yet, the fact that Wikileaks is now floundering, one of its founding figures on the lamb, and its funding down to a tenth of what it once was means that we ought not be so sanguine in our views. Happy stories about digital democracy should not deter us from the harsh reality that important open media principles have already been badly compromised, and more are at stake yet. Indeed, the deep ecology of the Internet is at stake, and so too is how we will conduct our lives in this highly contested place.
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