Dec 082010
 December 8, 2010  Posted by  Govt, Misc

No matter what you think about Julian Assange or WikiLeaks, and no matter whether you think unredacted data dumps are a great idea or a national security risk, can we all agree that our First Amendment rights are in greater jeopardy now than they have been in years?

The knee-jerk inflammatory rhetoric of politicians around the world is just the precursor to attempts to seriously restrict a free press. While there is certainly a place for a discussion of the ethics and concerns about the potential impact of such data dumps, let’s not confuse concerns with power-grabbing neo-cons trying to use this as an attempt to control the press and the information that is available to us as citizens.

Our elected representatives eroded some of our liberties in the aftermath of 9/11 when they enacted the PATRIOT Act.  They sold us out when they granted immunity to telecoms who participated in warrantless surveillance of citizens. They also trampled our dignity and Fourth Amendment rights in the name of supposedly keeping us secure from terrorist threats to air travel.  Now our government is selling us out again by misusing their office to exert pressure on businesses to do their bidding against WikiLeaks – despite the fact that WikiLeaks has not been charged, much less convicted, of any crime.

Undoubtedly, some will rant and rail about hackers attempting to interfere with businesses who have done the government’s bidding  to cut off WikiLeaks.  If they took a larger perspective, they might realize that the hackers are essentially engaging in the kind of guerrilla warfare early revolutionaries used in the history of this country. When faced with abuses of power — such as those being engaged in by Joe Lieberman and others — the people will fight back with whatever means are available to them. That doesn’t mean I endorse what they are doing — only that I understand it.

There are mechanisms for dealing with threats or changing conditions. Congress can enact legislation. Courts can make rulings.   When elected public servants go outside of the constitutionally created means by bullying businesses and threatening the press with prosecutions for espionage, they subvert our constitution and should be widely proclaimed as enemies of this democracy.

As Pogo Possum wisely said almost 40 years ago, “We have met the enemy and he is us.”  Clearly, he foresaw Joe Lieberman and others like him.

In the face of this government-backed assault on our cherished freedoms, we as citizens must not remain silent. We need to speak up loudly and clearly that we will protect the First Amendment just as it has protected us for over 220 years.

Update 1: The Guardian has a report that PayPal’s Osama Bedier admitted the government’s role in their decision:

“State Dept told us these were illegal activities. It was straightforward,” he told the LeWeb conference in Paris, adding: “We … comply with regulations around the world, making sure that we protect our brand.”

PayPal is the first major corporation to admit that its decision to suspend dealings with WikiLeaks was a result of US government pressure.

Update 2: PayPal has released WikiLeaks’ funds. They have not reactivated the account, but a statement by their counsel on their blog says that Bedier created a false impression and that they were never contacted directly by the government:

Media reports today regarding a statement made by our vice president of platform, mobile and new ventures, Osama Bedier, at the LeWeb conference in Paris, have created confusion about PayPal’s decision to permanently restrict the account that was raising funds for WikiLeaks. We want to set the record straight.

As a global payment service that moves billions of our customers’ funds across borders and across jurisdictions, we are required to comply with laws around the world. Compliance with these laws is something we take very seriously. PayPal’s Acceptable Use Policy states that we do not allow any organization to use our service if it encourages, promotes, facilitates or instructs others to engage in illegal activity. This policy is part of an agreement we’ve made with our account holders and with the companies that allow us to process global payments. It’s also an important part of our commitment to protect our customers and to ensure our business can continue operating around the world.

In 2008 and 2009, PayPal reviewed and restricted the account associated with WikiLeaks for reasons unrelated to our Acceptable Use Policy. As soon as proper information was received from the account holder, the restrictions were lifted.

The account was again reviewed last week after the U.S. Department of State publicized a letter to WikiLeaks on November 27, stating that WikiLeaks may be in possession of documents that were provided in violation of U.S. law. PayPal was not contacted by any government organization in the U.S. or abroad. We restricted the account based on our Acceptable Use Policy review. Ultimately, our difficult decision was based on a belief that the WikiLeaks website was encouraging sources to release classified material, which is likely a violation of law by the source.

As I’ve pointed out previously, that is not what their AUP actually says, though. The phrase “encourage, promote, facilitate or instruct others to engage in illegal activity” is a clause in a prohibition that begins “relate to sales of items that”. Thus, their AUP actually says:

You may not use the PayPal service for activities that… relate to sales of items that encourage, promote, facilitate or instruct others to engage in illegal activity.

Because WikiLeaks is not engaging in activities that relate to sales of items etc., I would argue that they have not violated PayPal’s AUP.   In this latest statement, they often a wholly different explanation:

Ultimately, our difficult decision was based on a belief that the WikiLeaks website was encouraging sources to release classified material, which is likely a violation of law by the source.

Now where does it say in their AUP that their “belief” that a customer is “encouraging” what is “likely” a violation of law is unacceptable use?

  2 Responses to “WikiLeaks data dump is not a justification for totalitarian measures (Update 2)”

  1. I am personally torn on this issue. While I believe there’s many things the government keeps from us that we should know, there’s certain things, especially those secrets that can get someone killed in the field, that are better off not released.

    Then there’s the point people are trying to make about the diplomatic corps spying. That’s what they do! That’s what they’ve ALWAYS DONE. Every organized country, nation, kingdom, etc. have ALWAYS used diplomats to spy. Why do you think the other countries are not making a very big stink over that point? They know they do it, they know everyone else does it. That’s how things are done.

    Should he be prosecuted in the United States? Absolutely not. He wasn’t in the United States when he did it, he’s not an American. He did not hack into and get the information, someone else did and THEY gave it to him.

    Should he be persecuted for releasing the information? He’s a spy. Period. He’s just not spying for a particular country, he’s spying for a culture of people that believe the secrets should be released. The point is tho, he’s playing a spy game, he needs to be treated by spy rules.

    Don’t you ever wonder why spies want to remain anonymous? Could it be because they don’t want retribution against themselves?

    Do I think this is a first amendment issue, perhaps to some extent *if* it involved an American. However, he’s not an American citizen. He’s a foreign national and should be treated just like any other foreign national. It’s up to his country to decide if he broke their laws.

    What about International Laws? Will the World Court, the United Nations or any other entity weigh in on this?

    Is the propagation of secret documents criminal if you’re a mirror for the original release? At what point does that stop? If you put something online, especially in a torrent file, 1000 people could have it in a matter of a few minutes. Is it then illegal to possess something like that? What if you don’t know what it is? What if you downloaded the documents and someone went through and took out all of the “Secret” qualifiers? Then, it becomes just about document with words. Is that illegal to view? Have in your possession?

    This isn’t cut and dry law we’re talking about here and I would say, that’s the exact reason things have been handled the way they’re going.

  2. So far, I don’t see where WikiLeaks has clearly broken any existing laws here. And I do see them as a media organization. Just like Fox News has a political agenda as a media organization, so does WikiLeaks. But unlike Fox, WikiLeaks gives the raw data and not just their spin on it. So on some level, they’re a more trustworthy source of news and information than Fox is!

    The govt couldn’t stop the NYT from exposing the warrantless wiretapping program (although the NYT stupidly delayed publishing about it), and it shouldn’t be able to stop WikiLeaks from publishing files that might also embarrass it. That said, I agree with you and do distinguish between revealing military plans of upcoming actions and the types of files WL has released so far in cablegate.

    As to mirroring, I’d say that in this day and age, anyone who mirrors the cablegate files could probably claim that they are “citizen journalists” and entitled to First Amendment protection. Whether that would fly or not, I have no idea. But with over 700 mirror sites around the world, I doubt that the govt can effectively do anything. Once it’s out there, as you note, it’s out there.

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