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

Via Nicholas Carr:

Newsweek’s COO argues that the Amazon decision shows the danger of relying on commercial servers:

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

Writes Galarneau:

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

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

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

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

.”