Thursday, February 21, 2008

Wikileaks shutdown raises censorship questions

The muckraking website Wikileaks was ordered shut down earlier this week by a Federal Judge in San Francisco, in response to a request made by Swiss bank Julius Baer (the site can still be accessed via its IP address

Wikileak's mission is to provide a repository for "untraceable mass document leaking and analysis." Whistleblowers can post to Wikileaks anonymously. The site made a splash in late 2007 when it posted a military manual with details of the daily workings of the Guantanomo Bay detention facility.

We believe that transparency in government activities leads to reduced corruption, better government and stronger democracies. All governments can benefit from increased scrutiny by the world community, as well as their own people. We believe this scrutiny requires information. Historically that information has been costly - in terms of human life and human rights. But with technological advances - the internet, and cryptography - the risks of conveying important information can be lowered.

Predictably, there has been much online discussion of the shutdown order -- most of it disapproving. Palo Alto, CA internet attorney Julie Turner told CBS News that the order "is akin to seizing all the copies of The New York Times, locking the doors and ordering the landlords not to let anyone back in the building."


While conceding my belief that Wikileaks undoubtedly provides an aggregate benefit to society, allow me to indulge in a bit of devil's advocacy. Looking at the injuction request with my untrained legal eye, it seems pretty clear that Julius Baer sought only the "temporary and preliminary" shutdown of the site until the removal of the documents could be verified. As the bank alleges that the documents were pilfered by a "disgruntled employee" and subsequently altered, their continued display causes the bank "further irreparable harm."

Now, we could all potentially agree that the bank is probably lying here. And we could all see eye-to-eye on the likelihood that the bank will lose this case, and rightly so. But, wouldn't we also agree that property rights (these documents are the bank's property) and privacy rights (they refer to client's financial information ) are the bedrock rights of our legal system?

"But what about Wikileak's First Amendment rights," you say?

Good question. We should be ever vigilant. But should those rights extend to stolen property? We know that they don't.

Again, I'm not a lawyer, but at the very least, I think disputes of this sort should play out in court, not online. Some jurisdictions may not allow a transparent and impartial setting for whistleblowers to make their case, but San Francisco is certainly not one of them.

The fact is, we are not talking here about a rogue judge shutting down The New York Times without cause or warning. This is a legal dispute in which one side is seeking legal protection and the other is displaying potentially prejudicial evidence in public.

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