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The cloud press

December 04, 2010

Stephen Baker points to an illuminating, and troubling, report on the current state of electronic publishing by Newsweek COO Joseph Galarneau. This past week, amid the controversy surrounding WikiLeaks' publishing of confidential messages from US diplomats, Amazon.com tossed WikiLeaks off of its cloud computing service. WikiLeaks, the company said in an announcement, had violated at least two clauses in the Amazon Web Services (AWS) customer agreement:

AWS does not pre-screen its customers, but it does have terms of service that must be followed. WikiLeaks was not following them. There were several parts they were violating. For example, our terms of service state that “you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.” It’s clear that WikiLeaks doesn’t own or otherwise control all the rights to this classified content. Further, it is not credible that the extraordinary volume of 250,000 classified documents that WikiLeaks is publishing could have been carefully redacted in such a way as to ensure that they weren’t putting innocent people in jeopardy. Human rights organizations have in fact written to WikiLeaks asking them to exercise caution and not release the names or identities of human rights defenders who might be persecuted by their governments.

Galarneau notes that many traditional publishers, including Newsweek and other newspapers and magazines, also use Amazon Web Services to distribute their stories. Storing and transmitting words and pictures through a cloud computing service is considerably cheaper than building a private data center for web publishing. Indeed, cloud computing is becoming "the 21st century equivalent of the printing press." But, as the Amazon terms of service, with their broad and vague prohibition on content that may "cause injury to any person or entity," reveal, cloud companies operate on different assumptions than do printers. Writes Galarneau:

The power of the press can be dramatically limited when the power to the press is disconnected. Outside the newspaper industry, few publishers actually own their own printing presses. U.S. courts rarely exercise prior restraint (orders that prohibit publication), and most printers rely on their customers to shoulder the legal liability if there are disputes. But as Amazon’s silencing of Wikileaks demonstrates, the rules can change when media companies move on to the Internet, with its very different methods of publishing ...

[As] part of Newsweek’s journey to the cloud, we thought about the same issue that tripped up Wikileaks. In its 77-year history, the magazine has often published confidential or leaked government information. Amazon’s publicly available contract with AWS customers, which Wikileaks likely agreed to, states that Amazon can turn off a website if “we receive notice or we otherwise determine, in our sole discretion” that a website is illegal, “has become impractical or unfeasible for any legal or regulatory reason … (or) might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity.” Has Amazon anointed itself as judge, jury and executioner in matters of regulating content on its services?

Galarneau goes on to acknowledge that Amazon has good reason to be nervous about the kinds of content flowing through its servers, given legal ambiguities that continue to surround the distribution of digital information:

But should there be anything for cloud computing companies to fear? Federal law doesn’t hold hosting providers liable for information-related crimes committed by their users, no more so than a phone carrier would be subject to legal action due to a customer making a harassing call. There are gray areas untested by caselaw, [First Amendment attorney Michael] Bamberger added. “If the posting is a criminal act, which the Wikileaks materials may be given the claimed national security implications,” he said, “the service may have a legitimate fear of being charged with aiding and abetting despite federal law.”

Beyond the legal threats Galarneau discusses, there are also public-relations concerns and the possibility (and, in the WikiLeaks case, the reality) of debilitating denial-of-service attacks from parties who don't like the material coming out of your cloud. Of course, printers of controversial material can also face attacks - an angry person can throw a firebomb through a print shop's window - but the fact is that printers are much better protected from such attacks, through their anonymity as well as through their legal agreements with publishers, than are cloud computing companies.

Galarneau discloses that Newsweek struck a deal with Amazon that involves different terms than those in the standard AWS agreement: "Ultimately with Amazon, we agreed on mutually acceptable terms that would protect our editorial independence and ability to publish controversial information. Other media executives who use cloud computing have told me they baked in similar protections into their contracts." But such special protections are themselves problematical:

Newsweek is an established media company that has more clout and resources than the average start-up. How would the next incarnation of the Pentagon Papers be handled if it were published by a lone blogger instead of The New York Times?

Technologies advance more quickly than do laws, and eventually cloud companies may come to operate, vis a vis their journalistic clients, the way printers have operated in the past. But one of the lessons from the WikiLeaks case is that, today, there are no such guarantees. The cloud is a fickle medium, with restrictive and even capricious terms of service. Is there any journalism worth its salt that doesn't somehow cause harm to "a person or entity"?

Comments

What I think is sad about the AWS/wikileaks story is how Amazon basically capitulated to a bullying phone call from a senator.

Posted by: Ciaran [TypeKey Profile Page] at December 5, 2010 12:36 PM

This affaire puts the TPB-trial in the spotlight. Since publishing freedom obviously can't be bought on the commercial marketplace, cooperation and shared resources are possible solutions.
It is important to keep the alleged violation of copyright separate from the torrent technique. In the public debate this is not done very often. Or, in fact, hardly ever. There is a risk that new legislation will be based on uninformed and one sided opinions.

Posted by: chris Jangelov [TypeKey Profile Page] at December 6, 2010 05:31 AM

Interesting article, Nick. I think it brings up a fundamental issue: We all know that in the Internet environment anyone can be a "publisher." (Even a homeless person typing away on a public library computer.) As a result, copyright laws, libel laws and other rules of civil behavior can be thrown out the window by opportunists who know they will never be held accountable. Traditional newspapers and magazines never had that dubious luxury. For them, lawless behavior would jeopardize a significant investment. Should we be surprised that the the Wild West of the Internet comes to an end at the level of cloud gatekeepers such as Amazon? They have a huge investment to protect. It's funny: Up until now we've had a network of basically autonomous brick-and-mortar publishers spread throughout the land, generally abiding by a code of civil behavior but free in each case to decide for themselves whether to publish something or not. Now we're "democratizing" media by making it possible for anyone to publish in a seemingly consequence-free environment, while the whole thing is controlled by a small number of corporate gatekeepers who cannot possibly ignore consequences. In a civil society, actions do have consequences. So unless we embrace anarchy we're going to have to reign in abuses like copyright infringement, libel, and yes, even violations of espionage laws. This article, I think, points to the problem that arises when liability is too centralized: We end up with a few gatekeepers like Amazon dictating behavior. If we're going to build a truly democratic and civil society online, we're going to have to find a way to spread the consequences for behavior--including liability for misbehavior--more equitably, as it was during the age of the printing press.

Posted by: Mike [TypeKey Profile Page] at December 6, 2010 11:07 PM

The wikileaks issue followed by the backlash against companies who boycotted the website brings up interesting issues about trust in the cloud, something I believe Richard Stallman talked about some time ago.

http://www.guardian.co.uk/technology/2008/sep/29/cloud.computing.richard.stallman


and that's without considering if governments have been putting pressure on companies to effectively censor organisations they dislike; but do not want to follow legal due process on...

Posted by: Stewart Dinnage [TypeKey Profile Page] at December 11, 2010 07:08 PM

Nick,

Spotcloud.com just created a spot market for cloud computing. How will this refocus the way IaaS operates as an industry?

Posted by: Choofca [TypeKey Profile Page] at February 22, 2011 11:49 AM

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