WikiLeaks and the protect-ip Act: A New Public-Private Threat to the Internet Commons Yochai Benkler Abstract: The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of a Downloaded from http://direct.mit.edu/daed/article-pdf/140/4/154/1830072/daed_a_00121.pdf by guest on 26 September 2021 new, 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 those afforded 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 pressure to achieve results beyond what law would provide or even permit. In December 2010, a website that the Pentagon had described in 2008 as dedicated “to expos[ing] un- ethical practices, illegal behavior, and wrongdoing YOCHAI BENKLER is the Berkman within corrupt corporations and oppressive regimes Professor of Entrepreneurial Legal in Asia, the former Soviet bloc, Sub-Saharan Africa, Studies at Harvard University, and the Middle East,” and that in 2009 had received where he also serves as Faculty Co- the Amnesty International New Media Award for director of the Berkman Center for reporting on extrajudicial killings in Kenya, came Internet and Society. His publica- tions include “The Commons as under a multisystem denial-of-service attack in- a Neglected Factor of Information tended to prevent it from disseminating informa- Policy,” Telecommunications Pol- tion. The attacks combined a large-scale technical icy Research Conference (1998); distributed-denial-of-service (DDoS) attack with “From Consumers to Users: Shift- new patterns of attack aimed to deny Domain Name ing the Deeper Structures of Regu- System (dns) service and cloud-storage facilities, lation Toward Sustainable Com- disrupt payment systems services, and disable an mons and User Access,” Federal Communications Law Journal (2000); iPhone app designed to display the site’s content. and The Wealth of Networks: How The site was WikiLeaks. The attackers ranged from Social Production Transforms Markets unidenti½ed DDoS attackers to Senator Joseph and Freedom (2006). Lieberman and, more opaquely, the Obama admin- © 2011 by Yochai Benkler 154 istration. The latter attack is of particular free context for designating sites as legal- Yochai interest here, having entailed an extra- ly suspect actors, while making critical ser- Benkler legal public-private partnership between vice providers immune from responsibil- politicians gunning to limit access to the ity for any action they take by denying site, functioning in a state constrained by technical, payment, and business process the First Amendment, and private ½rms systems to targeted sites. Together, these offering critical functionalities to the elements form the basis for extralegal site–dns, cloud storage, and payments, attacks on critical services, thereby creat- in particular–that were not similarly ing a shortcut to shutting down allegedly constrained by law from denying service offending sites. The insinuation of illegal- to the offending site. The mechanism cou- ity creates the basis for public pressure on pled a legally insuf½cient but publicly sa- the service providers to deny service; im- Downloaded from http://direct.mit.edu/daed/article-pdf/140/4/154/1830072/daed_a_00121.pdf by guest on 26 September 2021 lient insinuation of illegality and danger- munity replicates the legal void that allows ousness with a legal void. By publicly stat- service-provider action well beyond any- ing or implying that WikiLeaks had acted thing a court would have ordered. unlawfully, the attackers pressured ½rms Combining denial-of-payment systems skittish about their public image to cut off with the use of extrajudicial mechanisms their services to WikiLeaks. The inapplica- and private party enforcement appears to bility of constitutional constraints to non- extend basic techniques developed in the state actors created the legal void, per- war on terrorism into the civilian domain. mitting ½rms to deny services to Wiki- It represents a new threat not only to the Leaks. This, in turn, allowed them to ob- networked commons, but to the very tain results (for the state) that the state is foundations of the rule of law in the Unit- prohibited by law from pursuing directly. ed States. The range of systems affected by the attack was also new: in addition to disrupting On November 28, 2010, WikiLeaks, in technical service providers–which had cooperation with The New York Times, the been familiar targets since efforts to con- Guardian, Der Spiegel, Le Monde, and El País, trol the Net began in the 1990s–the attack began to release a set of leaked U.S. em- expanded to include payment systems. bassy cables. The following is a condensed This pattern of attack is not an aberra- version of a detailed and fully document- tion. One need only observe its similari- ed event study of the response to that dis- ties to current efforts by the copyright in- closure.3 WikiLeaks, a site dedicated to dustries to shut down sites that challenge making materials leaked by whistleblow- their business models. This objective was ers public, had published a series of items laid out most explicitly in the ½rst draft of from the Pentagon and the State Depart- the Combating Online Infringements ment between April and November 2010. and Counterfeits Act (coica)1 that was The ½rst release, a video showing Ameri- introduced in September 2010, and a pow- can helicopters shooting a Reuters pho- erful version of it remains in the present tographer and his driver, exposed previ- version of the bill, the Preventing Real ously hidden collateral damage incurred Online Threats to Economic Creativity in the pursuit of insurgents. The video was and Theft of Intellectual Property Act followed by the release of thousands of war (protect-ip Act) of 2011.2 The coica/ logs in which ½eld commanders described protect-ip approach, which replicates conditions on the ground in Afghanistan the dynamics of the WikiLeaks attack, en- and Iraq. The disclosures were initially de- deavors to create a relatively procedure- scribed by the administration as highly 140 (4) Fall 2011 155 A New damaging to the security of troops and ter. In a critical move, PayPal discontin- Public- human rights workers, but as time passed, ued its service to WikiLeaks; a vice pres- Private Threat formal Pentagon assessments sent to ident of the ½rm, commenting publicly, to the Congress suggested that no such harm pointed to the November 27 letter, not to Internet 4 Commons had occurred. On November 28, Wiki- Senator Lieberman’s call, as the reason Leaks and its traditional-media partners that PayPal believed WikiLeaks had bro- began to release documents selected from ken the law, thus triggering the ½rm’s de- a cache of about 250,000 classi½ed cables cision to stop payment service to Wiki- that U.S. embassies around the world had Leaks.6 The State Department letter was sent to the State Department. In late No- complemented by a series of public state- vember and December they published, ments that tried to frame WikiLeaks’s em- in redacted form, a few hundred of these bassy cable release as international ter- Downloaded from http://direct.mit.edu/daed/article-pdf/140/4/154/1830072/daed_a_00121.pdf by guest on 26 September 2021 cables. WikiLeaks’s decision to publish the rorism. Secretary of State Hillary Clinton materials, including when and how they called the release of the cables “an attack were published, was protected by First on the international community.” Vice Amendment law. Indeed, precedents es- President Joseph Biden explicitly stated tablished at least as far back as the Pen- that Julian Assange, the founder of Wiki- tagon Papers case support the proposition Leaks, was “more like a high-tech terror- that a U.S. court would not have ordered ist than the Pentagon Papers.” Senator removal or suppression of the documents, Dianne Feinstein wrote a Wall Street Jour- nor would it have accepted a criminal pros- nal editorial calling for Assange’s pros- ecution of WikiLeaks or any of its editors ecution under the Espionage Act. Some and writers.5 right-wing politicians simply called for Despite the constitutional privilege that his assassination on the model of U.S. allowed WikiLeaks to publish the leaked targeted killings against Taliban and Al documents, American political ½gures Qaeda leaders.7 widely denounced the disclosures. More- Against the backdrop of this massive over, critics appeared to blame only Wiki- public campaign against WikiLeaks, Sen- Leaks, even though traditional outlets such ator Lieberman’s December 1 public ap- as The New York Times were providing ac- peal was immediately followed by a series cess to the same cables, and in the same of service denials: form. The most effective critic, Chairman • December 1: Storage. Amazon removes of the Senate Homeland Security Com- WikiLeaks materials from its cloud- mittee Senator Joseph Lieberman, urged storage facility. companies providing services to Wiki- –Countermeasure: WikiLeaks moves stor- Leaks to cease doing so. Senator Lieber- age to ovh in France. man issued his call on December 1, 2010, following a well-crafted letter from the • December 2: DNS. Everydns, the dns State Department to WikiLeaks sent No- registrar serving the WikiLeaks.org do- vember 27, 2010.