Another Apple Falls From the WikiLeaks Tree

Dec. 29, 2010— -- To some observers, the companies who have severed ties with WikiLeaks are traitors to free expression, led by the nose by U.S. government censors. But to others, the companies are responsible actors simply enforcing their terms of service.

The problem is, the truth lies somewhere in between.

Last week, Apple followed the lead of a host of other name brand players in the Internet ecosystem by pulling an unofficial WikiLeaks app from its iPhone and iPod app store.

According to news reports, Apple made the move after it decided that WikiLeaks violated its terms of service that requires apps to comply with all local laws and may not put an individual or group in harm's way.

The move, which follows similar decisions by Amazon, PayPal, Visa, and WikiLeaks own DNS service provider, appears unlikely to have any practical effect on access to WikiLeaks, which is now mirrored on hundreds of sites around the world.

Companies Have Freedom to Develop Standards for Removing Content

But it adds a complex new element to an already complex controversy over leaks of government information. And that new element is the role of the powerful private actors that in one way or another impact the distribution of -- and access to -- content online.

To some observers, the companies who have severed ties with WikiLeaks are traitors to free expression, led by the nose by U.S. government censors. But to others, the companies are responsible actors simply enforcing their terms of service.

The problem with both positions is that they prove too much and too little.

In the United States, we have made a conscious decision to give Internet intermediaries broad discretion in deciding what content to host.

With the exception of notice and take down laws for copyright claims, companies are given protection from liability or responsibility for the content posted by others. But they are also quite free to develop and apply their own standards in removing questionable content.

First Amendment Limits Government's Power to Force Companies to Remove Content

At the same time, our First Amendment strictly limits the power of the government to force companies to take down content.

Under this system, Internet platforms and the companies that support transactions (such as payment companies) often enforce their terms of service to take down content and cut off customers. Sometimes, where the content is plainly illegal, there is broad consensus that a particular type of content (such as child pornography) should be taken down.

But in the main, each player in the Internet environment enforces its own terms of service, often driven by complaints of users and reports of abuse. Sometimes those decisions make sense and sometimes they do not, but we muddle along because the system is better than government content controls.

That's what makes the corporate cutoffs associated with WikiLeaks so difficult to unpack. On the one hand, the Internet has flourished based on this system in which companies may adopt and enforce the terms of service they deem appropriate for their business.

Companies Should Not Ignore Public's Right to Know

On the other, when terms of service are used by a growing set of companies to justify cutting off controversial political speech that few believe is illegal for a third party to host, it is right to ask whether these policies are being applied in a consistent and transparent manner.

However, when a takedown is justified on the grounds that a government official said the content is illegal, it is right to be alarmed. You don't have to side with WikiLeaks to see the dangers ahead.

It may be expedient for companies today to fall in line with the U.S. government and protect their brand against the taint of an unpleasant controversy, but giving in to such pressures will surely make it more difficult for companies to be on the right side of free expression tomorrow.

Companies now exercise broad control over the platforms and tools that facilitate speech online. When they develop terms of service or apply them to controversial content, they should not ignore the public's right to know and the broader free speech implications of their actions.

As companies seek to protect their brands, it is critical that they also consider the impact of their actions on the core values of freedom of speech and access to information.

WikiLeaks has proven it can hold center stage of the global theater. It is unlikely to disappear, even in the face of great government pressure. But a lone whistle-blower, a critic without a broader network, or a dissident in a repressive country, may not have WikiLeaks' ability to switch to alternative online outlets. And in that scenario, important political speech may be suppressed forever.

Leslie Harris is president and CEO of the Center for Democracy & Technology.