154
WikiLeaks and the
protect
-
ip
Act:A New Public-Private Threat to theInternet Commons
Yochai Benkler
© 2011 by Yochai Benkler
YOCHAIBENKLER
is the BerkmanProfessor of Entrepreneurial LegalStudies at Harvard University,where he also serves as Faculty Co-director of the Berkman Center forInternet and Society. His publica-tions include “The Commons asa Neglected Factor of InformationPolicy,” Telecommunications Pol-icy Research Conference (1998);“From Consumers to Users: Shift-ing the Deeper Structures of Regu-lation Toward Sustainable Com-mons and User Access,”
FederalCommunications Law Journal
(2000);and
The Wealth of Networks: HowSocial Production Transforms Marketsand Freedom
(2006).
I
n December 2010, a website that the Pentagon haddescribed in 2008 as dedicated “to expos[ing] un-ethical practices, illegal behavior, and wrongdoingwithin corrupt corporations and oppressive regimesin Asia, the former Soviet bloc, Sub-Saharan Africa,and the Middle East,” and that in 2009 had receivedthe Amnesty International New Media Award forreporting on extrajudicial killings in Kenya, cameunder a multisystem denial-of-service attack in-tended to prevent it from disseminating informa-tion. The attacks combined a large-scale technicaldistributed-denial-of-service (
DD
o
S
) attack withnew patterns of attack aimed to deny Domain NameSystem (
dns
) service and cloud-storage facilities,disrupt payment systems services, and disable aniPhone app designed to display the site’s content.The site was WikiLeaks. The attackers ranged fromunidenti½ed
DD
o
S
attackers to Senator JosephLieberman and, more opaquely, the Obama admin-
Abstract: The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of anew, extralegal path of attack aimed at preventing access and disrupting the payment systems and adver-tising of targeted sites. In this model, the attacker may be a government agency seeking to circumvent constitutional constraints on its power or a private company trying to enforce its interests beyond thoseafforded by procedural or substantive safeguards in the law. The vector of attack runs through the tar- geted site’s critical service providers, disrupting technical services, such as Domain Name System service,cloud storage, or search capabilities; and business-related services, such as payment systems or advertising.The characteristics that make this type of attack new are that it targets an entire site, rather than aiming for removal or exclusion of speci½c offending materials; operates through denial of business and ½nan-cial systems, in addition to targeting technical systems; and systematically harnesses extralegal pressureto achieve results beyond what law would provide or even permit.
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Yochai Benkler140 (4) Fall 2011
istration. The latter attack is of particularinterest here, having entailed an extra-legal public-private partnership betweenpoliticians gunning to limit access to thesite, functioning in a state constrained bythe First Amendment, and private ½rmsoffering critical functionalities to thesite–
dns
, cloud storage, and payments,in particular–that were not similarlyconstrained by law from denying serviceto the offending site. The mechanism cou-pled a legally insuf½cient but publicly sa-lient insinuation of illegality and danger-ousness with a legal void. By publicly stat-ing or implying that WikiLeaks had actedunlawfully, the attackers pressured ½rmsskittish about their public image to cut off their services to WikiLeaks. The inapplica-bility of constitutional constraints to non-state actors created the legal void, per-mitting ½rms to deny services to Wiki-Leaks. This, in turn, allowed them to ob-tain results (for the state) that the state isprohibited by law from pursuing directly.The range of systems affected by the attackwas also new: in addition to disruptingtechnical service providers–which hadbeen familiar targets since efforts to con-trol the Net began in the 1990s–the attackexpanded to include payment systems.This pattern of attack is not an aberra-tion. One need only observe its similari-ties to current efforts by the copyright in-dustries to shut down sites that challengetheir business models. This objective waslaid out most explicitly in the ½rst draft of the Combating Online Infringementsand Counterfeits Act (
coica
)
1
that wasintroduced in September 2010, and a pow-erful version of it remains in the presentversion of the bill, the Preventing RealOnline Threats to Economic CreativityandTheft of Intellectual Property Act(
protect
-
ip
Act) of 2011.
2
The
coica
/
protect
-
ip
approach, which replicatesthe dynamics of the WikiLeaks attack, en-deavors to create a relatively procedure-free context for designating sites as legal-ly suspect actors, while making critical ser-vice providers immune from responsibil-ity for any action they take by denyingtechnical, payment, and business processsystems to targeted sites. Together, theseelements form the basis for extralegalattacks on critical services, thereby creat-ing a shortcut to shutting down allegedlyoffending sites. The insinuation of illegal-ity creates the basis for public pressure onthe service providers to deny service; im-munity replicates the legal void that allowsservice-provider action well beyond any-thing a court would have ordered.Combining denial-of-payment systemswith the use of extrajudicial mechanismsand private party enforcement appears toextend basic techniques developed in thewar on terrorism into the civilian domain.It represents a new threat not only to thenetworked commons, but to the veryfoundations of the rule of law in the Unit-ed States.
O
n November 28, 2010, WikiLeaks, incooperation with
The New York Times
, the
Guardian
,
Der Spiegel
,
Le Monde
, and
El País
,began to release a set of leaked U.S. em-bassy cables. The following is a condensedversion of a detailed and fully document-ed event study of the response to that dis-closure.
3
WikiLeaks, a site dedicated tomaking materials leaked by whistleblow-ers public, had published a series of itemsfrom the Pentagon and the State Depart-ment between April and November 2010.The ½rst release, a video showing Ameri-can helicopters shooting a Reuters pho-tographer and his driver, exposed previ-ously hidden collateral damage incurredin the pursuit of insurgents. The video wasfollowed by the release of thousands of warlogs in which ½eld commanders describedconditions on the ground in Afghanistanand Iraq. The disclosures were initially de-scribed by the administration as highly
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156
A New Public- PrivateThreatto the InternetCommons Dædalus, the Journal ofthe American Academy of Arts & Sciences
damaging to the security of troops andhuman rights workers, but as time passed,formal Pentagon assessments sent toCongress suggested that no such harmhad occurred.
4
On November 28, Wiki-Leaks and its traditional-media partnersbegan to release documents selected froma cache of about 250,000 classi½ed cablesthat U.S. embassies around the world hadsent to the State Department. In late No-vember and December they published,in redacted form, a few hundred of thesecables. WikiLeaks’s decision to publish thematerials, including when and how theywere published, was protected by FirstAmendment law. Indeed, precedents es-tablished at least as far back as the
Pen-tagon Papers
case support the propositionthat a U.S. court would not have orderedremoval or suppression of the documents,nor would it have accepted a criminal pros-ecution of WikiLeaks or any of its editorsand writers.
5
Despite the constitutional privilege thatallowed WikiLeaks to publish the leakeddocuments, American political ½gureswidely denounced the disclosures. More-over, critics appeared to blame only Wiki-Leaks, even though traditional outlets suchas
The New York Times
were providing ac-cess to the same cables, and in the sameform. The most effective critic, Chairmanof the Senate Homeland Security Com-mittee Senator Joseph Lieberman, urgedcompanies providing services to Wiki-Leaks to cease doing so. Senator Lieber-man issued his call on December 1, 2010,following a well-crafted letter from theState Department to WikiLeaks sent No-vember 27, 2010. That letter did not takethe legally indefensible position that Wiki-Leaks itself had broken the law. Instead,it correctly asserted that the law had beenbroken (by someone), insinuating thatWikiLeaks was the offending party. Notsurprisingly, implicated service providerswere among those who misread the let-ter. In a critical move, PayPal discontin-ued its service to WikiLeaks; a vice pres-ident of the ½rm, commenting publicly,pointed to the November 27 letter, not toSenator Lieberman’s call, as the reasonthat PayPal believed WikiLeaks had bro-ken the law, thus triggering the ½rm’s de-cision to stop payment service to Wiki-Leaks.
6
The State Department letter wascomplemented by a series of public state-ments that tried to frame WikiLeaks’s em-bassy cable release as international ter-rorism. Secretary of State Hillary Clintoncalled the release of the cables “an attackon the international community.” VicePresident Joseph Biden explicitly statedthat Julian Assange, the founder of Wiki-Leaks, was “more like a high-tech terror-ist than the Pentagon Papers.” SenatorDianne Feinstein wrote a
Wall Street Jour-nal
editorial calling for Assange’s pros-ecution under the Espionage Act. Someright-wing politicians simply called forhis assassination on the model of U.S.targeted killings against Taliban and AlQaeda leaders.
7
Against the backdrop of this massivepublic campaign against WikiLeaks, Sen-ator Lieberman’s December 1 public ap-peal was immediately followed by a seriesof service denials:
•
December 1:
Storage.
Amazon removesWikiLeaks materials from its cloud-storage facility.
–Countermeasure:
WikiLeaks moves stor-ageto
ovh
in France.
•
December 2:
DNS
.
Every
dns
, the
dns
registrar serving the WikiLeaks.org do-main, stops pointing the domain nameto WikiLeaks’s server.
–Countermeasure:
WikiLeaks uses nu-meric
ip
addresses updated throughTwitter and begins to rely more heav-ily on WikiLeaks.ch
dns
as well ason mirroring by various volunteersthroughout the Net.
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