This section is a stub. You can help WikiJuris by expanding it!

Public and private actors are increasingly seeking to regulate user behaviour by asking payment intermediaries – like Mastercard, Visa, and Paypal – to exercise control over the flow of money.1)

Case study: How Payment Intermediaries Attempted to Shut Down WikiLeaks

Video Overview by Shana Webster

In 2010, WikiLeaks partnered with multiple leading newspapers around the globe (such as the Guardian and New York Times) to publish over 250,000 cables between the US Department of State and US Embassies worldwide. These disclosures included highly sensitive information, such as identifying that the American Special Forces had been operating inside Pakistan. As the publication of the information is legal in the US, the Government could not prevent the release. Instead, the State wrote to WikiLeaks, imploring them to cooperate. The letter was strategically penned so as to insinuate illegal operations by WikiLeaks. It alleged that the anonymous source who released the information had broken the law, and so long as WikiLeaks held the material, the violation was ongoing. When WikiLeaks failed to cooperate, the State leaked the letter to the media.

Political Pressure: Influencing the Financial Industry

Within days of publication, most of the major payment providers who were processing donations to WikiLeaks terminated their services to the organisation. These companies included Paypal, MasterCard and Visa. They argued that WikiLeaks had breached use policies by encouraging illegal activity. The intermediaries admitted that the only evidence of unlawful activity relied upon was the leaked US Government letter. However, the illegality insinuated was a reference to an obsolete piece of American legislation that has never been successfully applied. Furthermore, it can be argued that its jurisdiction doesn’t extend to organisations such as WikiLeaks.

The accusations made against WikiLeaks in the US Government letter have never been legally grounded. As such, it is widely believed that it was actually concerted political pressure by the US Government that persuaded the blockade. After the publication, the US Government had made open attempts to convince the public that WikiLeaks was a terrorist organisation. Several congressman had publically called upon private intermediaries to cease services to WikiLeaks, many of which obliged. There were also allegations that several intermediaries were privately pressured by members of parliament. The risks incurred by these companies in cancelling services include legal liability and public upheaval. The question is then, why? It is hard to imagine that a successful, private company would subsume to political pressure without receiving a benefit in proportion to the risk. The benefit may well be the aversion of threats or blackmail, financial payments, legislative favour or protection type agreements.

‘Community’ Internet Regulation & the Importance of Public Consensus

The public reaction was an immense display of the power of community internet regulation. It also highlighted the importance of public consensus relating to intermediary regulation. The hacktivist group ‘Anonymous’ launched Distributed Denial of Service attacks at every business who refused service to WikiLeaks. DDoS attacks work by flooding the website with so many requests that the site becomes inundated and unavailable to those trying to legitimately access it. This made clear that those intermediaries who move to regulate without public support will be held accountable by the online community. It also demonstrates the potential for extremist actions of those who will act in lieu of public support. There is clear potential for private actors to usurp an infrastructural level of governance and control the flow of information to society. In an information society, this is a significant power.

Was the blockade a success?

While the financial blockade was not successful in shutting down WikiLeaks, it managed to cause substantial damage to the organisation’s operational value. It destroyed 95% of its revenue and forced the company to cease publications for several years. In 2014, WikiLeaks was victorious in a lawsuit against one of the intermediaries for breach of contract. A tumble effect followed, with most major intermediaries reinstating services. As it stands today, all financial intermediaries aside from the Bank of America have reinstated WikiLeaks services.

The Ongoing Privitisation of Internet Governance

The payment blockade raised valid concerns as to the ongoing privatisation of internet governance. The intermediary action demonstrates that private actors who own critical internet infrastructures are willing to deny services to individuals without proven legal cause. There is an argument that intermediary regulation is the most viable option at present, given the substantive jurisdictional issues surrounding internet governance. However, these private organisations are absorbing a significant amount of power due to infrastructural design as opposed to legal capacity or appointment. It is not realistic to assume that they have the ability to remain objective and resilient in the face of political pressure.

Overview Videos by Madeline Menzies-Miha and Jennifer Singleton

Help needed!

The regulatory pressure that can be imposed by payment gateways and providers has led some people to move to decentralised cryptographic currencies - like Bitcoin. Explain Bitcoin and the regulatory challenges it presents.

For those interested in further reading, please see:


1)
See, for example, Mark MacCarthy, “What Payment Intermediaries are Doing About Online Liability and Why it Matters” (2010) 25(2) Berkeley Technology Law Journal 1139.
  • cyberlaw/follow_the_money.txt
  • Last modified: 9 months ago
  • by witta