WikiLeaks, The Internet And Democracy

WikiLeaks, The Internet And Democracy

Panel moderated by Paul Jay including Daniel Ellsberg, Clay Shirky, Neville Roy Singham, Peter Thiel and Jonathan Zittrain -   January 21, 2011
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Clay Shirky teaches the theory and practice of social media in NYU's Interactive Telecommunications Program and its Journalism department, where he is a Distinguished Writer in Residence. He is the author of, Here Comes Everybody: the Power of Organizing Without Organizations and Cognitive Surplus: Creativity and Generosity in a Connected Age. He is a Fellow at the Berkman Center for Internet and Society at Harvard. In 1967, Daniel Ellsberg worked on the top secret McNamara study of U.S. Decision-making in Vietnam, 1945-68, which later came to be known as the Pentagon Papers. In 1969, he photocopied the 7,000 page study and gave it to the Senate Foreign Relations Committee; in 1971 he gave it to the New York Times, the Washington Post and 17 other newspapers. His trial, on twelve felony counts posing a possible sentence of 115 years, was dismissed in 1973 on grounds of governmental misconduct against him, which led to the convictions of several White House aides and figured in the impeachment proceedings against President Nixon. Ellsberg is the author of three books: Papers on the War (1971), Secrets: A Memoir of Vietnam and the Pentagon Papers (2002), and Risk, Ambiguity and Decision (2001). In December 2006 he was awarded the 2006 Right Livelihood Award, known as the "Alternative Nobel Prize," in Stockholm, Sweden, ". . . for putting peace and truth first, at considerable personal risk, and dedicating his life to inspiring others to follow his example." Since the end of the Vietnam War, Ellsberg has been a lecturer, writer and activist on the dangers of the nuclear era, wrongful U.S. interventions and the urgent need for patriotic whistleblowing. Paul Jay is the CEO and Senior Editor of The Real News Network. 9-11 and the Iraq war were turning points in history and it had an irreversible effect in Paul Jay's life. Alarmed by the inability of major media to ask the underlying questions, Paul decided to combine his film and television experience and his quest to know the undercurrents of news to build an independent television network. Three years later The Real News Network is on it's way. Paul is an internationally acclaimed, award winning filmmaker whose films include Return To Kandahar, Hitman Hart: Wrestling with Shadows, Lost in Las Vegas, and Never-Endum-Referendum. For a decade, Paul was the Executive Producer of counterSpin - Canada's flagship debate show on CBC Newsworld. He was also the Founding Chair of Hot Docs!, International Documentary Film Festival (Toronto), now the largest in North America. Roy Singham is founder and chairman of ThoughtWorks, Inc. With more than 20 years of technology and executive management experience, Singham is a globally-renowned information technology thought leader. Sigham and ThoughtWorks are recognized experts in Enterprise Architecture, Agile development, large scale software development including highly distributed teams, Open Source Software, Ruby, .NET and Web Services. During the last five years, Singham has provided management services to clients in the insurance, mortgage, energy, leasing, retail and software development industries. He has also directed multi-million dollar projects with clients including Caterpillar Financial Services, Dixons Group, Progressive Insurance and Transamerica. One of Sigham's passions is evolving cultural and organizational patterns to create the most advanced internally and externally socially networked Consultancies in the industry. Singham drives the innovative cultural changes that enable ThoughtWorks to remain the world's most influential company in the arena of bespoke business software development. Peter Thiel is a technology entrepreneur, investor, and philanthropist. He has founded and helped launch numerous companies--from PayPal to Facebook--and runs Clarium, a global macro hedge fund manager. He also works to promote and protect freedom through the Thiel Foundation and by sponsoring many nonprofit organizations. Mr. Thiel earned a BA. in philosophy from Stanford University and a J.D. from Stanford Law School. He lives in San Francisco. Jonathan Zittrain is Professor of Law and Professor of Computer Science, Harvard University, and co-founder of the Berkman Center for Internet & Society. He is a member of the Board of Trustee of the Internet Society and is on the board of advisors for Scientific American. His research interests include battles for control of digital property and content, cryptography, electronic privacy, the roles of intermediaries within Internet architecture, and the useful and unobtrusive deployment of technology in education. He performed the first large-scale tests of Internet filtering in China and Saudi Arabia in 2002, and now as part of the OpenNet Initiative he has co-edited a study of Internet filtering by national governments, "Access Denied: The Practice and Policy of Global Internet Filtering," and its sequel, "Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace. " His book "The Future of the Internet -- And How to Stop It" is available from Yale University Press and Penguin UK.



Daniel Ellsberg, Former State and Defense Dept. Official prosecuted for releasing the Pentagon Papers

Clay Shirky, Independent Internet Professional; Adjunct Professor, Interactive Telecommunications Program, New York University

Neville Roy Singham, Founder and Chairman, ThoughtWorks

Peter Thiel, President, Clarium Capital; Managing Partner, Founder's Fund

Jonathan Zittrain, Professor of Law and Professor of Computer Science, Harvard University; Co-founder, Berkman Center for Internet & Society


Paul Jay, CEO and Senior Editor, The Real News Network


WikiLeaks, The Internet And DemocracyKAREN TUCKER, CEO, CHURCHILL CLUB: Good evening everyone. Thank you so much. Welcome. My name is Karen Tucker and I am CEO and a member of the board at the Churchill Club. Our program tonight is entitled "WikiLeaks: Why it matters, Why it doesn't". And I'd like to welcome our distinguished speakers, starting with Daniel Ellsberg, Clay Shirky, Roy Singham, Peter Thiel, Jonathan Zittrain, and of course our moderator Paul Jay. Thank you all for joining us tonight. And I would also to thank our program partner and sponsor ThoughtWorks. It has been a great experience working with the ThoughtWorks team to develop this program, with some help also from The Real News Network. But ThoughtWorks, we definitely could not have done this without you. Thank You. Hello to all of our viewers watching the live stream on and The Real News Network. The program will be available on demand on those two websites and also on the Churchill Club YouTube channel after tonight. Before we kick off, a few brief announcements about upcoming programs. Next week, on January 26, we'll be up in San Francisco with another timely panel entitled "Location and Privacy: Where are we headed?" with speakers from Microsoft, the Federal Trade Commission,, and CDT. And on February 16 we present a Churchill Club Great Debate: "Is software patentable? Should it be?" And we have speakers there from Fenwick & West, Gabriel Venture Partners, and the Free Software Foundation. And finally, on February 24 we present former Sun Microsystems CEO Scott McNealy in conversation with former Motorola chairman and CEO and also Sun president Ed Zander, and they're going to be talking about the legacy of Sun Microsystems, perspectives on where the industry is headed, maybe some advice about which database to buy--probably plenty of surprises. So details of these and other programs can always be found on our website at For those of you less familiar with the Club, we are a non-profit, member-supported, unusually lively business and technology forum with 7,000 members. We're now celebrating our 25th year. And if you're not a member already, please do consider joining us, and enjoy the benefits that come with membership, including special access to more than 30 programs every year. And my last announcement, if you're Tweeting this evening, please do use #ChurchillClub so that everybody can follow along. And now it's my privilege to introduce our moderator, Paul Jay. Paul is CEO and senior editor of The Real News Network, which is a nonprofit organization that he created in 2005 to create uncompromising global news. Paul has been a force in the Canadian media for over 20 years. He is an award-winning documentary filmmaker and is currently working on a feature documentary film called Report from the Middle East. Paul's films have been shown on television around the world through groups such as A&E, Turner, BBC, and CBC. But not content with just documentaries, Paul created and was the executive producer of CBC Newsworld's daily flagship debate programs Face Off and CounterSpin, which for ten years were the primetime Canadian national debate shows about the news of the day. And we're very happy to welcome him back to our stage at the Churchill Club. Please give your warmest welcome to Paul Jay.

PAUL JAY, SENIOR EDITOR, TRNN: This is far too long an introduction for me, because one of the things we're going to try to do tonight is not have very long introductions, because as one of the local newspapers said, we have a stellar panel, and we--it really is, the brainpower on this stage is enormous. So we're going to try to make as much room for people to speak from the panel as possible. This topic we're dealing with is an issue of rights. And I think that's going to be the theme that will run through the evening. The rights of government to keep secrets. The rights of people to know what their government is doing. The right to have transparency. In the most recent case with WikiLeaks, the issue of foreign policy: does government have the right to carry on a foreign policy that's publicly one thing and in reality something else, and do the people have a right to know that? It's also an issue about private companies. When do private companies have the right, or do they always have the right, to put commercial interests first? Meaning, if you get a call from a Senator--in the case of this specific situation, Senator Lieberman's staff, we're told, calls Amazon, whether it's coincidental or not, 'cause Amazon claims that phone call did not lead to Amazon taking down WikiLeaks, but they did, and they weren't the only company that took down WikiLeaks--the right of a private company to say, this in our commercial interest not to get into a war with a senator. And the right of public discourse on a platform that's primarily privately owned. What happens to public discourse when it's all moving to the Internet but the Internet is delivered primarily by private companies? So what do we do about that? How will the public interest be defended there? But it's also very much an issue about whistleblowers. And in this day and age, the only place whistleblowers are really going to get to the public opinion, both in the United States and globally, is on the Internet. And right now there's a fight taking place about that. And there's obviously a very zeroed-in campaign to try to close down WikiLeaks altogether. So to start us off, probably the best-known whistleblower in the United States, and certainly renowned for his courage--and I'm not going to go on and on about him, 'cause I promised you no long introductions. Daniel Ellsberg is a former state and Defense Department official, and as you all know, he was prosecuted for releasing the Pentagon Papers. Daniel. So in terms of the significance of the attempt to close down WikiLeaks on the Internet, the great amount of pressure to try some way to prosecute Julian Assange--and I believe there's a grand jury deliberating that now--what does your experience teach us?

DANIEL ELLSBERG, FMR. DEFENSE DEPT OFFICIAL, LEAKED PENTAGON PAPERS: Well, I had the very unusual experience of being the first person ever prosecuted for a leak to the press or the public in the United States. The act under which I was prosecuted, namely, the Espionage Act, had been designed for espionage and had never been used for anything else, other than against spies with the intent specified, to harm the interests of the United States or help a foreign power. My prosecutors did not charge that of me. On the contrary, they used the clause in the Espionage Act--which they're using against Bradley Manning also, and which they would use against Assange if they decide to do it. And that makes no distinction, by the way, in its target. It had never been used, as I say, for--in connection with a leak or a disclosure of classified information, and the reason for that was really that it had been always understood that that was intended to cover spying and that we did not want, Congress did not want an official secrets act of the British kind which criminalizes any and all disclosure of classified information, of government secret information. And the people working on that act or other proposals by administrations to have an official secrets act, Congress had always rejected that on the grounds that that went against the core of our democracy--the First Amendment; the necessity--if the public is to be in any sense sovereign, it had to be informed; that the press played an essential role in that; and that it was the role of the press to inform the public of information of the most embarrassing and sensitive kind, namely, information about mistakes, errors, crimes, reckless policies, incompetence, the sort of thing that I can tell you, as somebody who was in the government, is subject to the closest guarding from its political rivals, from the electorate, and from the public. So we've never had an official secrets act. Actually, Congress did pass one in the year 2000 and Clinton vetoed it. Let me ask how many in this elect audience knew either of those facts? Can I see hands? I see one, two, three, four, five, six, seven. Okay. How many did not know either of those? Okay. We would have an official secrets act if Clinton had not been led to veto that act, and it would criminalize what Assange did, it would criminalize what Bradley Manning did, definitely what I did. And actually it would go a lot further, because the wording of that act, the only act that the government has found to be--claimed to be applicable makes no distinction between officials, press, bloggers, anyone without authorized access to the information, passing it on to anybody unauthorized. And that means--and this sounds absurd, but it's the way it's written--that would mean that any reader of The New York Times reading a story saying--this is not a joke--saying this is a classified document to which we've been given access, the reader is not authorized--passing it to her husband or her child, her sister, whatever, would be passing it to an unauthorized person and just as prosecutable, in terms of the wording of the Act, as an official or a consultant, as I was, or Bradley Manning, or Julian Assange, or anyone who--you know, this could apply to everyone. Extremely broad. It was always assumed that that would be unconstitutional if it were applied to disclosures. And that's why prior to Obama there were only--in a world where leaks occur every other day, there were three prosecutions, of which mine was the first. The third, AIPAC, was dismissed for a variety of reasons (mainly its being AIPAC, I believe). But--AIPAC. But we would have had to admit that Israel was a foreign country to which they passed the information, and so they didn't want to get them under spying, which otherwise they could have done--[Section] 794. But--different act. But only one person has actually been convicted by a jury and gone to prison, Samuel Loring Morison. So if Supreme Court refused to address that case [inaudible] Two other people have pled guilty, so their cases didn't go up. The Supreme Court has never actually ruled on whether it's constitutional to put this much material--we're talking billions to trillions of pages of classified documents over the last 60 years--to put that all beyond public discussion, not just by threat of firing or clearance, which is very effective and has kept far too many secrets, but to add to that criminal sanctions. Is that constitutional? The Supreme Court has never yet addressed that. I think that is related to the strange fact that President Obama, who came in promising transparency, who has in fact, in the area of national security and homeland security, been as secretive as any prior administration, including George W. Bush, and in some ways more secretive, in one way in particular I'm about to mention. I said [that] before Obama there were three indictments. Obama has brought five in these two years. If he brought it against Assange, if they did six, it would be twice as many as all previous presidents put together. And what's going on here? Well, it's part of a policy of, generally, use of state secrets privilege, use of--against dismissing lawsuits, being totally secretive, not being at all forthcoming on freedom of information in terms of these areas. So it's part of a policy. But why more than others? I don't--I'd be interested to hear anybody's suggestion. In fact, I think you were asking me that the other night, Peter [Thiel]. Why is it that Obama is pressing this so strongly? This is before WikiLeaks, remember, except for Bradley. The previous four were before WikiLeaks, and two of them were for acts undertaken under Bush, which Bush had not indicted--Thomas Drake and Shamai Leibowitz, who is in prison now. So in other words this we're not looking back applies to the myriad crimes of the Bush administration--torture, aggressive war, warrantless wiretapping, crimes that actually strike at the heart of our Constitution, as well as our domestic law. No looking back on those. The only looking back is on whistleblowers Drake and Liebowitz revealing what they thought were great wasteful practices. So there is a war on whistleblowing. To me--and again, why Obama so much? I have a hypothesis. It's really--this is just very speculative. I think he's more--feels more vulnerable to whistleblowers than either [of] his predecessors, because he's doing many of the same things. One of the great secrets in the cables released is how little difference there is from 2008 to 2009. They're the same practices, the same [inaudible] Not that much difference. But Bush was proud of it. He did it secretly at first; it was all covert at first. But when it came out, Torture? We don't torture. But what we do we do, and I don't apologize for it. NSA warrantless wiretapping? No problem. Need it. I think Obama's a little more embarrassed about all that coming out, that he's acting in the same lines, that he has a new war that he's escalating, added to Bush's war in Afghanistan. And he really wants to do what other presidents have always wanted to do: shut down leaks that they don't control, the leaks they don't make. But I think he's really doing it more aggressively than any previous president, and specifically he's doing it by treating the act that I was charged under as on official secrets act, as an act that criminalizes all leaks. And if he gets a conviction of any of these people, not just Manning or Assange, if he gets Drake or Kim, if they go up to the Supreme Court and the Supreme Court takes it and doesn't notice that it is unconstitutional--which is not a bad bet: earlier courts would almost surely have called it unconstitutional; this one might not. And if he gets that, he has a very broad official secrets act, and from then on, all he has to do to find out who is the source of any leak, one day to the next, with a clear-cut crime, is to call in the reporter whose byline is on the head of that column and say, we're not charging you with anything, we're not against the press, we're for the press; just who committed the crime? And if the person can't take the Fifth Amendment, he or she is not being charged with anything, they just either tell or they go to jail indefinitely for contempt. Judith Miller lasted 85 days. And some of them will last longer, but a lot of them won't. And from then on, no source will have any basis for assuming or hoping that their name for this whistleblowing will be anonymous. Their only recourse will be WikiLeaks. So WikiLeaks matters.

JAY: I should have said in the beginning what the format for this evening is. Each speaker will speak for about five or so minutes, and then I'm going to open it up to the panel to question or comment on what the first speaker spoke about. And over the course of the evening each speaker will get a chance to speak. So I now throw it to the panel. Any questions or comments or argument with Daniel Ellsberg?


CLAY SHIRKY, WRITER, INTERNET TECHNOLOGY EXPERT: I'd like to start by echoing what Mr. Ellsberg has said about the national scope, the previous national scope of all of these leaking cases. I mean, the remarkable thing about the Pentagon Papers case is that the Supreme Court decision there, New York Times v. US, all actors were local--you were local, The Times was local, the DOD was local, and--local to the United States. And that judgement meant that all of the decisions around the Espionage Act of 1917 could assume American membership of all of the participants and could assume, essentially, the full scope of the rule of law. What I think is really remarkable about what WikiLeaks has done is that they haven't just internationalized this, the transmission of leaks. They've actually globalized it, by which I mean it's not just happening in another country, it's not just happening in France instead of here. WikiLeaks is actually the first truly multi-honed journalistic organization we've ever seen. And the fact that there is no one place for a government to get its hands around changes things quite dramatically, because I think the--when you look at the situation from the point of view of the leakers, of someone who thinks I have some information about secret wrongdoing that ought to be exposed to the view of the public in a democracy, any leaker who looks at what happened with Judy Miller is not going to take The New York Times' view of that, which is, we did the right thing, our reporter went to jail, we defended her; they're going to look at it from the point of view of, under those circumstances, the US government was willing to jail someone indefinitely for contempt. And the answer is: do not leak to a source in the same nation as the information is about. And that strikes me as a permanent change. Anyone with a document of any importance to leak, I can't imagine them leaking it to their own national press rather than going through a WikiLeaks-like service and coming back to the national press, simply because of the getting around the very problem--Mr. Ellsberg is right.

JAY: It's an interesting thing, because Canada has a law against the Canadian security establishments tapping phones within Canada. Australia has the same law in Australia. So they trade it: Australians listen to Canadian conversations; Canadians listen to Australians' conversations; they both beat their domestic law. Except now what's happening is that nongovernmental actors are going to start playing the global game. It's very interesting. Anyone else want to jump in on this before we move ahead?

PETER THIEL, VENTURE CAPITALIST, HEDGE FUND MANAGER: Well, I do think the question about transparency and--is--it's very interesting how there's this question where the transparency's directed. Is it directed at individuals or at governments? And I think we see this even in the Assange case, where on the one hand we have this, now, incredible transparency about what's going on--I found it most striking in the Middle East--and, you know, the serious risks of a massive escalation in Iran, a possible escalation already going on in Pakistan, Yemen, various other places. And so there sort of is a [inaudible] transparency related towards making government more transparent. And then of course you have all the transparency about Assange personally that's come out, where one suspects that there would not have been nearly as much transparency into Assange's escapades in Sweden had it not been linked to this government thing. And I do think that transparency acts--you know, is an incredibly powerful weapon of sorts, and we have to think really hard how it gets used, and we should distinguish very much between governments and individuals. And this is a very important kind of a thing to do, that if--. And one of the big differences is governments have the power of the state on their side. They can use violence. And we should be following the violence and seeing where it leads. And we should have more presumption of innocence with individuals and have more privacy in that sort of a context. So I think that asking--I think we shouldn't simply have a gloss, we're going to have a more transparent world, and that's better, or we're going to have, you know, less privacy, and that's worse. But we have to ask some very tough questions about who is--where the transparency is being increased and how that changes the balance of power between states and individuals.

NEVILLE ROY SINGHAM, CHAIRMAN, THOUGHTWORKS: I had a question, and maybe Daniel follows it more closely than I do, but this SHIELD Act that they're trying to push, I think, the House Judiciary, are you following that?

ELLSBERG: I did follow that. But you know, no shield act that's ever been--this is to allow reporters to protect their sources in front of grand juries and in other respects. But no shield law has ever been proposed that would cover the transmission of classified information, so it doesn't actually relate. Actually, Representative Issa claimed to be in favor of the SHIELD law, and was one of the sponsors of it, I think, is believed to have changed sides on this particular--but he's particularly using the WikiLeaks case--which is absolutely unrelated to the SHIELD Act debate--as an excuse for having kept that out of a vote in the last session of Congress, and it's very unlikely to go ahead in the next session. So he has pretty much killed it on an excuse. There's no rational basis for it.

SINGHAM: But just so the audience knows, the reason my mother came tonight is to see Daniel. I have not been able to see my mother for weeks. But when he came, I got to see my mother tonight. So this is a big honor for the family. But you're the ranking historian in the room. In 1971 to today, obviously, a big change in landscape of all these different parts of American life. I remember that you weren't so warmly thought of in 1971.

ELLSBERG: You don't look old enough. Are you?

SINGHAM: I warmly thought of you, but I think many didn't. And I in fact was watching a story on Martin Luther King. You know, The Washington Post and Time magazine wrote an article about Dr. King one year before denouncing him as a demagogue and all this kind of stuff. It's very interesting how history judges people in context. Fast forwarding, do you think [that in] these last three years, we're at this--one of those other historic moments? I know Clay thinks--you know, you called this the Amsterdam moment, right, which I totally thought was brilliant, when--you know, Clay's a brilliant fellow, too, which, you know, for those who don't remember the story, which was--.

SHIRKY: It was the 1500s. Nobody in the room remembers. But--.

SINGHAM: Remember the story. But--well, that's true. But the Catholic Church at the time, the Bible was sort of a secret, and publishing was not so cool, and the printing presses of Amsterdam went on strike because of fighting secrecy. And Clay calls this our generation's, the Internet generation's historic moment. Do you agree with Clay that that's where we are?

ELLSBERG: Well, there are--there's--it cuts in several directions. For the behavior of the government or the attitude of the government towards leakers, there really isn't that big a change. The truth is that--. It's funny. There is a mantra going up right now, lately, that Pentagon Papers good, WikiLeaks bad; Ellsberg good, Manning bad. I've never had so many [inaudible]

JAY: Let me interrupt just by reading this, an Associated Press report. "Even as prosecutors build a case against the Army private suspected of passing hundreds of thousands of diplomatic cables to WikiLeaks, the State Department is promoting a documentary film that celebrates Pentagon Papers leaker Daniel Ellsberg. Amid its struggle to contain damage from the WikiLeaks revelations, the State Department announced Saturday that The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers has been selected as one of 18 films that will tour the world this year as part of its "American Documentary Showcase". I hope they don't name a day after you, 'cause that will be the end of it.


ELLSBERG: So my fondest dream--and that's not rhetorical; it would be the high point of my life--is if this film that the State Department is sending around the world to show a triumph of American democracy--because it really was the American system: other than the executive branch, the rest of it really acted almost unprecedentedly marvelously, as the Constitution intended, at that point. An independent judiciary did in fact find that the crimes the government had done against me were reason to drop the case, dismiss the charges. Congress cut off the money for the Vietnam War in the process of that struggle, that legal struggle. The--actually, the president's actions against me while I was on trial were key to his charges in the impeachment hearings, which led to his resignation and helped actually end the war. So, you know, this is quite a message for which the people of Tunisia have seemed to have gotten without even benefit of seeing the film, but that it actually--and not exactly by constitutional process, but that one can aspire to have a democratic system in which you don't have to get killed by the hundreds in order to change a criminal regime. But on the other hand, the acts for which he was facing [charges], namely, [as] I mentioned earlier, going into my former analyst's office, doctor office, to get information to blackmail me into silence about new revelations about his administration [inaudible] using the CIA as a secret police against me, doing a domestic profile (and helping that burglary, by the way, which was against their charter then), hearing me on warrantless wiretaps, which was illegal then and made even more illegal a few years later as a result, all these things were covert, but they've now become legal under Bush--the warrantless wiretapping and the use of CIA in these matters, the secret police, and so forth. And, finally, an effort Nixon had to bring CIA assets, Bay of Pigs veterans, up from Miami to incapacitate Ellsberg totally on the steps of the Capitol. Now, over the last year or so I've been saying, now, everything else is now legal, but that one is still illegal. That's in question, very much so. President Obama, through his director of national intelligence, Blair, has identified an American citizen who is on a hitlist for total incapacitation, Anwar al-Awlaki in Yemen, far from the battlefield, a civilian, for assassination by special forces units, the same kind that were used against me. The difference is--so the actions are the same. The difference is that Nixon did all those things covertly and faced impeachment as a result. Now they're legal and can be said--this is not a good progression. This is a descent into an abyss, actually. So that doesn't favor where our democracy has gone at all. But finally--and I'll maybe come back to this later; I'll just mention it now--finally, I feel very great affinity with Bradley Manning, because actually in--not for 40 years--. I'm often identified with the question is Daniel held Ellsberg like Assange and so forth. I like Assange. I've met him and I respect very much what he's doing, admire on the whole what he's doing, although I think he's made mistakes that I would hope I would not have done. But I think he's learned from them and is doing better. But the analogy is with Bradley Manning, and for that I had to wait 40 years. Manning is somebody who said to the guy who informed on him that I am ready to go to prison for life or even be executed. Executed? Seems a little melodramatic, except that congresspeople have called for his assassination, if not execution. Either--if you can't execute him, if you can't bring him back, assassinate the sources, the sources of this. And Bradley Manning is the only suspect so far, but whoever the sources are, they should be assassinated. It really has occurred to me, if Manning were to be tried, he'd have to be tried for treason, and he is no more a traitor than I was. But I was called a traitor by the president of the United States and the vice president, just like Bradley Manning--wrongly, stupidly, you know, wrongly. But I heard that, too, from the president and the vice president. If he were tried for treason, as people in Congress are asking, if he were executed, he would be the first American to be executed for giving secrets to Americans since Nathan Hale. And he, like Hale, is a guy, I believe (Bradley Manning), who, from his own statement and his own actions, is ready to give his life, his life and freedom, for his country, and that's as patriotic as you can get.

JAY: Right. Well, the other question the WikiLeaks drama over the last few months raises is: will there be a place for people like Daniel Ellsberg and Bradley Manning to release their material? On December 2, The Wall Street Journal reported that members of Senator Joe Lieberman's staff called Amazon and asked why they were hosting WikiLeaks. Amazon later the same day or the next day took down WikiLeaks from Amazon. They said it wasn't directly connected to anything to do with Joe Lieberman. Lieberman then issued the following statement. "This morning Amazon informed my staff that it has ceased to host the WikiLeaks website. I wish that Amazon had taken this action earlier based on WikiLeaks' previous publication of classified material. The company's decision to cut off WikiLeaks now is the right decision and should set the standard for other companies WikiLeaks is using to distribute its illegally seized material. I call on any other company or organization that's hosting WikiLeaks to immediately terminate its relationship with them. WikiLeaks' illegal, outrageous, and reckless acts have compromised our national security and put lives at risk around the world. No responsible company--whether American or foreign--should assist WikiLeaks in its efforts to disseminate these stolen materials. I'll be asking Amazon about the extent of its relationships with WikiLeaks, what it and other Web service providers will do in the future to ensure that their services are not used to distribute stolen, classified information." Later that day or the next day--I'm not entirely clear on the chronology, but within a day, a company called Tableau Software, which was providing a service that allowed--if people went and saw the WikiLeaks site, they were graphing how many different--which of the cables were most released, so you could see geographically where the cables came from. At any rate, on December 2, Tableau releases a statement: why we removed WikiLeaks' visualizations. And then the end of the statement says: "Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website." So I'd like to ask Clay Shirky. And Clay, just to remind you, is an independent Internet professional, adjunct professor, interactive communications at NYU. What's the significance of a Senator calling up a privately owned company and kicking off WikiLeaks?

SHIRKY: Well, so, I mean, there are so many pieces to that, to Lieberman's action. One of them, obviously, and particularly I think relevant in California, the home of the Pruneyard decision, is that it has visibly dramatized the way that the Internet is not in fact largely a public sphere, it's a corporate sphere that tolerates public speech. And the Pruneyard decision was a culminating decision around a series of arguments about labor and Vietnam protests in malls. And the question was: as in the 1960s the public space became increasingly corporately owned and managed, to what degree could commercial interests chase out the historic respect for public--essentially, public protest in places where other citizens could see it? I mean, it's a complicated series of overlapping decisions, but the last one of any real import was Pruneyard, which said, essentially, that California could have greater requirements of commercial firms to support public speech than the national standard that's been set. And I think at least one interesting illustration from Lieberman--and Evgeny Morozov, who I disagree with about quite a lot but who I think has nailed this one absolutely, Morozov said, up until WikiLeaks it was possible to imagine that self-restraint on the part of the US government would be enough, that the government would work through legal channels rather than bullying corporate firms. And I think Lieberman has given a lie to that hope for self-restraint. The other interesting thing about Lieberman that I think has been enormously clarifying is that he is one of the few intellectually honest actors in this part of the debate. So--no, seriously. The Lieberman moment was [that] this whole business of Ellsberg good, Manning bad, Pentagon papers good, WikiLeaks bad was basically a kind of attempt to wriggle out of the plain ramifications of the Pentagon Papers. And Lieberman said, no, no, that's not what we mean at all; what we mean is the Pentagon Papers case was wrongly decided; we would like to re-adjudicate it, and we want all media outlets to be punished. And he went on Fox News and said after WikiLeaks it would be good if we were to go after The New York Times. So Lieberman gave the lie to the idea that there was any kind of obvious legal or moral difference between The Times as a media outlet and WikiLeaks as a media outlet, and said essentially we're after a national secrets act. And I think the fact that Lieberman's actions demonstrated that Amazon and eBay and PayPal (owned by eBay)--Amazon, eBay, Visa, MasterCard, Tableau, etc. could attempt to damage WikiLeaks' ability to distribute content with much less process than it takes to get on a terrorism watchlist indicates how vulnerable the current infrastructure for public speech is to that kind of action.

JAY: Peter, you were one of the founders of PayPal. You later sold PayPal. But PayPal later--after Amazon took down WikiLeaks, PayPal refused to do their transactions anymore. What do you make of this issue of the right of a private company to defend its commercial interest, the right of public discourse, the right, the need of the public to have access to whistleblowers? And to shorten the question, if you'd been running PayPal now, what would you have done?

THIEL: Well, fortunately, I--you know, there's always this sort of thing where you don't have to answer difficult moral cases if you're not in a situation. So, you know, there are all sorts of people get placed in very difficult situations where you either do what's right, and which is very courageous, often, or you do what may be wrong and it's not very courageous, and most of the time people end up doing the latter. Unfortunately, most of us often are not really--do not find ourselves in either of those two situations. And I have not been running PayPal since 2002, and so I do not find myself in that--confronted with that personal moral dilemma. Now, what I do think ends up happening in most of these cases is companies will cave; and they will of course say that it's--that they are respecting people's rights and the privacy issues, but in practice they cave. And it's--it's sort of--you know, it's--companies are to the government like the government is with terrorists. You know, the government with terrorists, the line is always we never compromise with terrorists. And then there's--the unspoken footnote is except in every specific instance. And companies with the government it's always we're going to basically stand up for people's rights. And if you look at the various commentary around the WikiLeaks thing, you've got sort of various forms of corporate boilerplate to that effect. When you peel it back, maybe it doesn't mean quite as much, but then in every specific case there is incredible pressure brought to bear on companies to cave. And I think there are sort of two somewhat different perspectives I'd offer. And one is there's obviously this--somewhat of a moral perspective, where we would like to have absolutely heroic people as CEOs running these companies and saying that we're not going to compromise, and occasionally you get that. And then I think--you know, I think--but what I think we also should be trying to bring about is a balance of power that's a little bit different, where there aren't so many hooks that you have to be gone after, and where the penalties are not so extraordinarily high. And, you know, we live in a society where there are a lot of laws. It's not clear how they get applied. There's a book I read the other day, Three Felonies a Day. The average person in the US commits three felonies every single day, and it only takes, you know, a really clever prosecutor to find out. And so, you know, a given company, it's not just an issue with respect to a specific giving the government a right to this thing or that thing. It's likely there are all sorts of areas a company, or an individual, for that matter, is engaged in that involves a lot of legally gray zones, because we have a lot of super complicated laws in our country and nobody really knows what the law is and what it isn't. It's incredibly vague and it can be used in all sorts of arbitrary ways. And that's why I believe that even though we would like to have very heroic people, the reality is most people, much less most CEOs, are not like Ellsberg, and that's why I think we have to put this in the context of really reducing the power of the state to use violence against individuals and corporations.

JAY: How would you do that?

THIEL: Well, I think that that's--it's not an obvious question.

JAY: Within the context of this specific situation, where Amazon says, either 'cause they--I mean, they said it 'cause of--it was their own terms of service that they--. Their reasons for taking down WikiLeaks, they said, is WikiLeaks didn't have proof of copyright and things like this.

SINGHAM: But this is Peter's Three Felonies a Day. All terms of service read: we can do anything to you at any time with no penalties. And because lawyers work at $300 an hour, they write it out longer than that, but that's the ultimate effect of all terms of service. So any of us are in potential violation of any terms of service at any moment. This is--Peter's point about the interpretation of the terms of service is what Amazon did; it wasn't having the terms of service that was the event.

JAY: Right. So what do you do with that, where a private company and where the main platform of public discourse now is privately owned, and either for their own reasons or under government pressure can decide that such a thing can no longer be in the public domain?

THIEL: I do think the government pressure thing is the thing that shouldn't be dismissed here. And I think that this act is an incredibly powerful force that's brought to bear on companies in all these different contexts. You know, there are--most companies, especially most larger companies, sort of are entangled with the government in all sorts of different ways. And you do not want to get a reputation as a company that is sort of operating outside the law, because we have a lot of laws, and they will be brought to bear against you, and it's somewhat arbitrary how they get brought to bear. And I don't necessarily have a straightforward solution to it, or I don't know what you do. I think having more transparency into it is probably helpful. I think having a less powerful government is probably helpful. And then, obviously, to the extent we are supportive of people who take a principled stand, that would also be very helpful, even though it's--again, it's the sort of thing where in principle you never negotiate with terrorists, except in every specific instance.

JAY: Roy, do you want to take your five minutes?

SINGHAM: Okay. So I was actually dying to hear Peter's answer, because I think most of you know he's known as a mild libertarian at times. And to me this is--I have a lot of libertarian colleagues, and so there are always--we have healthy debates. And to me this is one of those interesting issues. So the Valley, many libertarians live here. Plenty of business people here. They don't like government intervention. But to me this is a very difficult issue in my mind for the Libertarians to address, right, because I actually agree with you: I'm very opposed to the power of the current government and how much they have, so we actually have a lot in common. But how is the public--you know, what is the recourse of somebody who's shut down by Amazon in your world? Right? So every private company, you know, caves, which I tend to agree with typically happens, and you can't sue Amazon, because they're not the government--the First Amendment doesn't apply to them. So I think there is a big problem that we have created that is unanswered in the Valley.

THIEL: Well, I think the problem exists because of the power of the state in the background, though. I actually--if you ask, you know, are these companies--and this goes to the question of what Amazon's real motive here is. And is Amazon shutting down access to WikiLeaks or supporting it because that's actually what they believe is in their corporate interest? Or is it because of the power of the state in the background? And that goes--that's a very important question you have to answer. And I tend to think--the Amazon statement you read struck me as disingenuous. I don't actually believe it.

SINGHAM: Right. How many people here think--


SINGHAM: --accurate assessment of Amazon's theory? Hmm.

THIEL: And how many people believe that government power was lurking in the background and was encouraging that statement?

JAY: Go ahead, Daniel.

ELLSBERG: Can I ask a question? Clay, you're giving Lieberman credit here for--which is fine. It occurs to me that since he is in fact consistent enough to say that if you're going to--that you should prosecute Assange and you should prosecute The New York Times, it is the case, as I was saying earlier, there is no US law that can criminalize anything Assange did that does not apply exactly, equivalently, to The New York Times . So how about Lieberman's pressure now for extralegal, extrajudicial pressure? Why isn't he calling for boycotting of The New York Times? And isn't that perhaps the next step? The New York Times is in fact putting out--. The New York Times actually selected the cables to come out out of these. They--basically, it's editorial judgement of them. They made the judgement. So if Lieberman is against that and says it's against the law, which his reading of the law would indicate it was, why isn't he also saying that The New York Times should not be--that anybody who reads The New York Times is supporting an organization that's involved in an illegal activity.

SHIRKY: Well, so in this case I think it may be because soft power will work better than hard power, which is that The Times, on the same day that they've published the first Cablegate stories, also had a very long profile of Assange that was tremendously unflattering. This is the John Burns story. And the bizarre thing about that story is that, I mean, Julian could drown cats at home in his basement and it wouldn't change one fact that appeared in those cables. And so going after the person, right, was a way, I think, of The Times kind of propitiating national sentiment. I mean, Julian is a gift to the press, or he's a monocle and a Persian cat away from being a James Bond villain, so he makes really good copy, particularly if you've got a photograph of him to run. And I think, right, no one ran a similar profile of Curveball--who was by proxy Judith Miller's source when she was putting forward the weapons of mass destruction story in The New York Times--had someone run that kind of story about Curveball saying we should be skeptical of the sources of these revelations. That, in my view, should have been front page news. Putting the Assange--the tremendously unflattering Assange profile as front page news next to Cablegate was, I think, The Times' way of saying, we won't defect as far as we could. And I think Lieberman recognizes that--.

ELLSBERG: He wants to prosecute them, though.

SHIRKY: He wants to prosecute him, yeah, and he said that, which, again, is, I think--I disagree with him, but I think it's intellectually honest. But I think he's also--I think there's a hard power argument outside the US. Assange is not a US citizen. Iceland is not a US country. As, you know, one of the members of the Icelandic government, whose Tweets were subpoenaed by the FBI, Tweeted: does the FBI know that I'm a member of the Icelandic Parliament? Like, I mean, it was--our ability to reach beyond the borders of the US is constrained, and I think Lieberman is looking for ways to affect that. But I think he's engaged in a game of chicken with the local press, saying, if this is what we can do to a media outlet like WikiLeaks, we'll come for you next. So I think he may feel as you imagine he does. I think he's just not come out with that yet, because I think he may sense the ability to restrain the local press's willingness to report the story simply by going after the novel actors in this situation.

JAY: I'm going to take us back to the question we were at just a little earlier. Jonathan Zittrain--am I saying it right?


JAY: He is a professor of law and professor of computer science at Harvard. He's cofounder of the Berkman Center for Internet & Society. What do we do? There's, like, a Catch-22 here. You have a First Amendment defense if the government tries to close you down, but there's no First Amendment rights to the Internet platform, which is fundamentally private, 'cause you can't have a First Amendment case against a private company. You're a lawyer. What's--give us your sense of this.

ZITTRAIN: Let me answer that by taking stock of where we're at so far in the conversation, 'cause Peter said something that I thought was really interesting as he declined, ever so politely and diplomatically, not to answer your question about what he would do if he were running PayPal. And [inaudible] gets back to Clay's point about Lieberman's intellectual honesty. He in a way gave you an intellectually honest answer because the easy answer, especially given how the conversation has shaped up so far, would be like, if I were running PayPal today, I'd tell those Feds to, you know, soak their heads, go drown a cat in the basement. (Where did you get that, Clay?) Anyway. But he didn't say that. What I heard between the lines of what he said was: so much of our actions are defined by the role that we are in, that we have a role that is distinct, we owe duties to people near us. And he says, and I don't want to put too many words in your mouth, but if somebody's running a company, they are under extreme pressure, and it can be awfully hard to second-guess them [inaudible] that I would do something different when they are confronted with--you name it--a Patriot Act Section 215 order that says, not only do you have to do this, but you can't tell anyone that we asked you to do it, and, you know, here's our badge. And if you're designing a system from the top--and that used to be what we thought constitutionalists did when they forged a constitution for a state--you want to try to design the system recognizing that people have to play their roles and that there are few outliers among them that will break out of the role and say, I don't care what you say, I'm going to do something else instead, and somehow try to set up the pieces so that the roles are arrayed so that they are actually in healthy conflict, and that sometimes one side wins, sometimes the other side wins, and the good stuff comes out of this conflict if the pieces are set up right. That's the classic idea of separation of powers. It's also an understanding of the role of the media, which is why I think a lot of people, including in Congress right now, have a hard time thinking of WikiLeaks as media. And if you could flick the switch in their head--this might not be true of Lieberman, since he wants to send The New York Times to jail too, but many others would say, I see, if they were media, then I would treat them differently. So a lot has to do with roles. And so far what I've heard from Daniel Ellsberg--this is somebody whose role has been in perceiving a great injustice being done and very little recourse through official channels to leak, and then later to have history's judgement that it turned out that was the right thing to do. And that's how I hear him saying that, you know, somebody like that, who not only leaked because he saw the injustice, but then had the president of the United States, like, engaging in wiretaps and kind of--talk about micromanagement of what's going on in the country. Like, of course your view is going to be not only I don't trust government, but, like, you know, the American government has really kind of let me down might be part, to put it mildly, of his view. And, of course, Peter's view as a libertarian, of course, after he's done [inaudible] and therefore the government should be smaller. Like, of course that will be his conclusion. That's his case to argue. So--alright. Now let me circle around to your question by then taking on a role which is just to sort of prevent too much violent agreement among the panel here. So to play the role a little bit of the law professor, what I didn't hear from Daniel was an assertion that the government is not entitled to keep any secrets, and my guess is he wouldn't say that. What he said was he was against a hypothetical, not-yet-passed official state secrets act that would immediately and without question criminalize anything leaked that had been marked as classified. But there are some classified things, whether they're nuclear codes or, you know, something else that we would all get together and agree that should stay secret. If that's the case, I think the right question for all of us to ask is how do we want to set up the pieces on the board, knowing that there's been this huge sea change called the Internet, for which it's much easier [inaudible] technology to take a thumb drive or a CD marked "Lady Gaga", as was the case, and instead of it being Lady Gaga, it's all the secrets, you know, thousands and thousands of cables, and just put it out there. What do we do about that? And one possibility is to say, as the government trying to be enlightened about it, we can still be against leaks, we can be ready to prosecute certain leakers, maybe even prosecute certain intermediaries. The difference, by the way, might be motive. If your motive is to inform the public, that might be okay. If your motive is to damage the government of the United States and bring it down because you hate it and you are its enemy, that might be a different motive, and in criminal law, motive can matter a lot. That's also, by the way, when you think about the difference between a leaker and a spy, 'cause there's only been a few leakers that have been brought under this title. A leaker is a spy who shares the stuff with everyone. Spies are more selective with whom they share the leaks, right? You're only leaking it to Russia. If you leak it to Russia and everyone else at the same time, you're a leaker, not a spy. But, of course, everybody's getting it. But the difference is motive: the spy has a motive only to help Russia; the leaker may have other motives. So I think we have a healthier ecosystem if it's not true that primary parts of it are so controlled by a certain handful of corporate chokepoints that they are then compelled to play their role. And we should expect at some point, even though part of our role will be to inveigh against them when they do play their role, to try to convince them maybe to be a little more free. We shouldn't have to have a system that depends on that level of response from companies. And you might see it consistent enough from company to company. And I think a libertarian could still accept players who are not governmental but not corporate in the classic sense either, that there's actually a role for .org. I would hope that the media sees its role as not simply corporate, to, you know, maximize its profits--and good stories do that. So thinking through ways in which we could set up a system so that people could, in the words of one of my student groups that just presented on this yesterday as part of a class we were doing, leak responsibly, which sounds like sort of a contradiction in terms, especially the likes of Joe Lieberman. But could you leak responsibly? Could you come up with a system that processes it, so that we agree that maybe this should come to light but there should be redactions to protect sources and methods? How can we build a system that will do that? And WikiLeaks itself maybe has slowly been pushed or co-opted into that direction. When they were first founded, the idea was send us the stuff, we'll send it out again--we're basically BitTorrent with an email address.

JAY: But that's more or less what happened this time. WikiLeaks, as Daniel pointed out, did not dump 250,000 cables.

SINGHAM: Well, that's what JZ is saying is that they--.

JAY: But in spite of that, you still have Lieberman's staff and you still have Amazon responding. So the question is: how do you create a structure where there is a public space where a First Amendment right would actually apply on this platform that's privately owned?

ZITTRAIN: Yes. And just to answer your question doctrinally, so I'm not dodging it--that wasn't a comment on you before--now it was, but it wasn't meant to be. Clay mentioned the Pruneyard case. The antecedent case to that was called Marsh v. Alabama. It's a wonderfully brief, short case from 1943, I think, before they had wordprocessors, so you couldn't copy and paste, really short, and involved the Gulf Shipbuilding Company, which was a company town. And it was kicking people off the public squares of the company town, 'cause it owned the public squares, too, and said, look, it's just trespass. And normally the First Amendment would back that up, back the company up, and say it's not the government, it's the company, the First Amendment only applies against the government. And in Marsh v. Alabama the unusual answer from the Supreme Court was: at some point, [if] it walks and acts enough like a duck and it's performing enough vital functions that it's as if it is a state, it stands in the shoes of the state for First Amendment purposes. And the Gulf Shipbuilding Company can't bring a criminal trespass charge--even though the public square is private property, technically--against the Jehovah's Witness who was there. So there might be a remedy either to say some private companies in essence are so much providing the sidewalks here that are normally public squares that, a la Marsh v. Alabama, we will treat them that way (only problem there is Marsh v. Alabama has not been followed since Marsh v. Alabama) or to try to affirmatively construct the space so that you don't have a company town, so that there are corners where conversation can happen. And then it is the role of Joe Lieberman to try to persuade people and get on his pulpit and say, this would be wrong, please don't do it. But that's not bullying; that's just him as a public official expressing a view at that point.

JAY: Okay. Roy, do you want to do your five minutes? And then we'll take questions.

SINGHAM: Yeah. Alright. So I unfortunately am one of the few who is an executive chairman and has to balance the delicate positioning of our company and our views. And I have to say I was very intimidated by being on this panel with all five of you, because you sort of know more. So I've been studying for the last seven weeks in terror, Karen, trying to make sure I'm prepared for this. But I would say that there was a big moment. I was in India with our colleagues when the story broke. And there was 400 ThoughtWorkers in a room in India, and there was silence when the story broke about Amazon. And it's quite different, the reaction outside of the United States, than inside the United States towards this topic. I would say the majority--I had this wonderful letter from one of my colleagues, a Swiss woman, developer, rather apolitical, saying, I'm so embarrassed by what America and Europe has done on this. It is--we are--if we don't think that this is a watershed moment for young people who have lived their life in the Internet to see that the government and companies are colluding against something that they believe is their birthright, we are missing a major issue in how people emotionally, especially outside the United States, are reacting to this issue. But I want to start with a story real quick about four people who are heroes. And Peter Chase--. Their names are Peter Chase, George Christian, Janet Nocek, and Barbara Bailey. Any of you ever heard of these people? Okay. Everybody ought to know them. And I know in the tech sector we like to call ourselves geeks, but there actually are other professions where you have geeks like Peter, and librarians happen to be one of those. And they're four rather quaint librarians, these four people. And they don't like your coffee [inaudible] in a mug in the library. They actually have this quaint view that librarians ought to serve the pillars of democracy. And what happened to these people was that they were the recipients of a national security letter, which is an unbelievable--talking about--I agree with Peter. Here is a letter that the federal government, the FBI, can issue without a warrant, without a judge, without any process, and it comes with an even more Orwellian feature called a gag order that is for life that you can't talk to your wife. These four people who became--decided to take on the role of fighting against the state for librarians against the state of the United States, they had to lie to their children about the existence of this gag order, right? This gag order, it doesn't say you can't talk about the substance of the order; it says you can't talk about the gag order. And this actually was--these people wanted to testify in Congress against a Patriot Act reenactment because they were saying this is a draconian measure of the government and they couldn't testify because they would've had to admit that they were these people. So hundreds of thousands of these national security letters were issued between 2003 and 2006. It's become sort of, you know, important to read the Constitution at every meeting nowadays. So I want to read real quickly the Fourth Amendment for those of you who might have forgotten it: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." There is nothing further from the Fourth Amendment than a national security letter and the power that it's giving the government. And again, the Orwellian nature of this gag order, for those of you who believe in First and Fourth Amendment rights, the idea that you cannot tell your neighbors about these things, in my mind is a prima facie case of an attack on these amendments. So what did these four librarians do? They launched a one-year case against the government. They were known, you know, in their circles as John Doe. Eventually, the good news is, they did allow themselves--they became the first four Americans who could admit that they had received a national security letter. When the FBI inspector general looked at these cases, massive use of abuse. And the fact was 52 percent of them were against American citizens. So my question to us as technical people in the room: where are the librarians in the tech industry? Where are they? You know, where is Peter Chase and Janet Nocek in this room? I view the early--I would say in my life--I have to admit I've learnt more in the last seven weeks about the question of these issues. But I want to call out for us, because we are the tech sector, to companies that I did think the opposite of what--the cowardliness of Amazon. One of them is XIPWIRE in Philadelphia. They supported the right of WikiLeaks to receive money and allowed the American citizens to exercise their right to dissent. And the second company was a Canadian company, which was the DNS provider. Going back to your point, you know, about the question of DNS providing, you pull somebody's DNS registration off, that's like--if that isn't a public service, I don't know what is. And so here was this Canadian company that--you know, easyDNS, which came in and provided the DNS providing service--a massive service, you know, to this person. There are two other actors that I wanted to mention, some of whom are in this room. And one of the most important cases was Yahoo! successfully rejecting the Justice Department's ludicrous argument that if you've read your email, the government doesn't need a warrant to read it. So thank you, Yahoos in the room, for--in a very important case, for protecting the right for my read emails to be read by others [sic]. The second [mention] is for Twitter in their negotiating with the Justice Department around--this was actually not on an NSL; it was, I think, a 2073D. Yes, I've been trained now with what these things are. And here was--. But it also had a gag order. But what Twitter did was they negotiated against the gag order, which is why, you know, Birgitta Jonsdottir was allowed to then release the subpoena, which I read [inaudible] was quoted. Most of the people in this room probably remember, under the helpful eye of Peter Klein, an AT&T person, that on 611 Folsom St. in San Francisco, going back to these, you know, wireless--sorry, the warrantless wiretaps, secret rooms being built in there to allow NSA [National Security Agency] [inaudible] billions of bits of information. These were not telephone conversations; these were Internet communications, not only of AT&T, but 15 other providers. My second question for the people in this audience: what is the mathematical chance that these rooms do not exist at Facebook and Google? How do we know that Yahoo! and there aren't members in this audience who are in the same compromised position as the librarians who had these gag orders? It is inconceivable to me that such rooms or such kind of activities don't exist. I think, you know, we've tried to talk about--one of the things we've discussed is: what are the values and principles that, as the Internet community, we ought to try and protect? So we've sort of come up with three quick ones, or four. One--and I think, Peter, you and I would agree with this [inaudible] the existence of a free and transparent Internet has actually been one of the most Democratic things that has come across out of human history. The fact that the barrier to entry, that somebody with a cell phone, you know, in Alabama or Zimbabwe has access to the Internet, this is one of the most profound leveling events in human history, and if we don't protect that thing that we have built so hard to cherish, we have failed our children. The freedom of the press should not be restricted to The New York Times but has to include WikiLeaks. If we don't fight that, we are giving up on 200 years of the rights that we have fought to protect for the freedom of the press. I believe that if you read the subpoena that was sent to Twitter, you could interpret that as asking for all the IP addresses of all the WikiLeaks viewers. Do you really think that the US government should know the IP addresses of 600,000 people who follow WikiLeaks? I find that a terrifying infringement on the right to association. The fourth principle that I think emerges is that the criticism of the government is the core of the First Amendment. And if anybody's under doubt why is the US government going so vitriolically after WikiLeaks, they are obviously embarrassed about the war crimes and war difficulties that happened in Afghanistan and Iraq. Let's not pretend [inaudible] that that issue gets swept under the rug. There's something that was wrong, and that has been brought to light, and thank goodness for WikiLeaks. So I would say one thing as a businessperson. I spend a lot of my time traveling, almost 300 days a year, a lot of it outside the US. Probably, you know, I don't know, 70 percent of our staff are outside the US. I have a Canadian client who I was talking to about two weeks after this event, and I asked her, you know, what do you think of the Amazon case, and she said, Roy, I told you before, as a Canadian, I will never consider allowing my Canadian company to host with an American provider, knowing that my customer records can be followed by a foreign government and a foreign country and I have violated my oath as a corporate officer to protect the privacy of my customers.

ZITTRAIN: Yeah, you just want the Australians to do it in Canada.

SINGHAM: Right. Exactly. Exactly. But--no--but she--but--but--by the way--and there's--I think the guy from Fujitsu said the same thing. What Amazon has done has basically set back the cloud movement. It has, because it has totally said not--forget the political side. If I was a--I have a Brazilian colleague who was about to--who was thinking about a startup, and he called


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