Clinton sought to distance the State Department from individual American politicians who have called for Julian Assange's head. She made the point that the U.S. government did not pressure private companies like Amazon.com and Paypal to sever their ties with WikiLeaks. Yet it is well known that these companies were influenced by State Department Legal Advisor Harold Koh's letter on WikiLeaks, in which he wrote that the "violation of law is ongoing" as long as WikiLeaks continues to publish the leaked diplomatic cables. As Harvard legal scholar Yochai Benkler wrote in response to Tuesday's speech, the assertion that publication of the cables is illegal "is false, as a matter of constitutional law; but it is not in fact stated, it is merely implied by omission; this leaves room for various extralegal avenues that can be denied as not under your control to do the suppression work."
Concerns about extralegal actions by companies who can shut down controversial -- but arguably constitutionally protected -- speech before any court has even ruled on a publisher's guilt or innocence highlight how governments are not the only actors with a responsibility to make and uphold commitments to free expression and privacy.
Clinton was certainly right to highlight the fact that corporations running Internet platforms and telecommunications services have equally serious obligations to uphold universally recognized rights to free expression and privacy, particularly when governments fail to respect these rights. Companies around the world face strong pressure to censor, monitor, and silence users and customers when it suits government interests. The Egyptian government's shutdown of Internet and mobile services could not have succeeded without the private sector's cooperation. Research In Motion, the owner of BlackBerry, has been asked by a range of governments to comply with surveillance requirements. Some activists are concerned that Facebook is making it easier for governments to track them down by enforcing terms of service requiring the use of real names, no matter where in the world you live.
It was thus encouraging that Clinton called on companies to join the Global Network Initiative, a multi-stakeholder effort by companies, socially responsible investors, human rights groups, and academics to help companies make and uphold such commitments. Unfortunately only Google, Microsoft, and Yahoo have had the cojones (as former Secretary of State Madeleine Albright would put it) to join.
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