Privacy: February 2008 Archives
When I first reported on this, it had only shown up in The Guardian, but now it's all over the mainstream press, so following up seems a bit pointless, but I'll should wrap it up here anyway.
Judge Jeffrey White may not have understood the consequences of what he was doing at the time, but he was not oblivious to the press coverage nor, fortunately, the constitutional questions that were raised; you can't go around shutting down publishers just because they published information that they (possibly) shouldn't have.
"There are serious questions of prior restraint and possible violations of the First Amendment," White ruled from the bench in his San Francisco courtroom. - Reuters via New York Times.
The case had rapidly escalated, with serious questions raised about whether Wikileaks had sufficient notice, whether Baer was being fully forthcoming about the situation, and even whether the Court had jurisdiction. In addition, by the time the judge decided to hold a hearing on the matter, the big guns were out in strength, with Public Citizen, the California First Amendment Coalition, ACLU, Project on Government Oversight and the EFF all weighing in.
One thing is very clear; if Baer wanted to keep their documents secret, they seriously miscalculated. Pre-blogging days you might have been able to stifle a source and assume that the complaints (if any) would come long after you stopped caring (the company is preparing a public stock offering). Instead, they saw the entire process play out in less than ten days. And those documents they wanted out of the public eye? They've been read, seen or at least heard of by hundreds of thousands of people who had never even heard of a banking group called "Julius Baer." True or not, the company's name is now indelibly associated with Cayman Islands money laundering.
But I'm sure Wikileaks appreciates the publicity.
I really hadn't been following any of this, and I'm not big on conspiracy theories (no, not even when they involve Karl Rove (as featured on the new depleted uranium half-gallon coin)). Also, it was a bribery case, and that would seem to be relatively straightforward, right? More on that after the fold. First the highlights.
Article pointer courtesy of Dave Winer.
So, the date on the check doesn't match the story, and the story-teller admits his memory needed prodding. That doesn't sound good at all. But unless those missing notes surface, there doesn't seem to be much hope of a re-trial.
Two points to take away.
- "Bribery," particularly in politics, is distinguishable from "campaign donation" only by intent and timing. The former is virtually impossible to determine, and the latter is easily faked. There's not a lot that can be done about that fact, and it's why politicians need to make such an effort to avoid even the appearance of impropriety. (Unfortunately, some of them get so focused on "appearance" that they forget they are supposed to avoid the "actual" impropriety as well.)
- Anybody can be appear guilty if you monitor everything they do, particularly if the folks doing the monitoring are selective about what they disclose. This is of course especially true of politicians, but it's also true of you and me. And it's a very good response to people who are willing to give up their privacy to the Government because they have nothing to hide. The issue isn't what you've done—it's what you might appear to have done.
Wikileaks.org is (was?) a site created for whistle-blowers to post incriminating documents. There's obviously potential for abuse there, and WikiLeaks claims to have posted 1.2m documents, which is certainly a lot of incrimination.
There are a couple interesting things about the take-down which should concern any domain owner.
- Wikileaks was not at the hearing which closed the site. They claim to have been given only a few hours warning via email. The take-down was done via the registrar (Dynadot). Additionally, the court (apparently being more technical than most) also ordered Dynadot to prevent any domain transfers.
- A California court took the entire site offline because of a legal issue in Switzerland over specific documents.
I suppose going through the registrar is similar to having a landlord change the keys on an apartment, but I find it very disturbing that this was apparently done without first attempting to negotiate with the Wikileak maintainers. This isn't a case where there is any time critical element, or where evidence might "disappear" if the owner was given a warning. Quite the contrary. So what's the rush? And what are the legal implications?
I also find it disturbing that a California court is enforcing Swiss laws, particularly ones that don't appear to have U.S. analogues. And that they would take such draconian measures. They've shut down the presses in order to prevent the repeated publication of an "article" that has already been made public. I certainly hope that someone rules that they've overstepped their bounds.
BTW. There are of course, still mirrors to the site. (You should be so lucky if your site gets taken down.) You can find one here. And their article on the take-down his here.
