December 05, 2010

It seems Wikileaks' release of the diplomatic cables has touched a nerve mere military releases could not. The general public seemed just fine with protecting First Amendment rights during a series of leaky hiccoughs involving some dozen (other) countries, odd reports of toxic dumping, the inner secrets of sorority sisters and Scientologists, illegal practices in Icelandic banks; and let's not forget about the leaked e-mails of the Climatic Research Unit, gleefully reproduced in appropriately edited versions all over the conservative blogosphere.

The first sign of real trouble actually antedates the diplomatic cable leak. When the Swiss bank Julius Baer learned that some of its records had been leaked specifically pertaining to anonymising trusts in its Cayman Islands branch (with strong tax evasion and money laundering implications), the chief operating officer of that branch was fired. Interestingly, the leaks appear to have continued even after Rudolf Elmer's dismissal: so the bank launched a cease and desist order against Wikileaks and its United States domain registrar Dyandot, on the basis that "immediate harm will result to Plaintiffs in the absence of injunctive relief." For reasons as yet unconfirmed, Wikileaks had no representative at the hearing where the injunction was granted. Although the law firm representing Julius Baer is based in Los Angeles, the hearing was held in San Francisco. Wikileaks claims that Julius Baer had never informed Wikileaks in which city it would seek the injunction.

This first action passed almost completely under the media radar, and would probably have gone almost completely unnoticed on its own. Things only hit the fan when Julius Baer succeeded in getting a second injunction against Wikileaks: which would have suppressed virtually every major document Wikileaks had ever exposed. At the time, Wikileaks held somewhere in the neighbourhood of a million documents: of which only fourteen touched on Julius Baer. The given reason was to protect the privacy of Julius Baer's clients: yet Julius Baer's own lawyers identified at least one of those clients by name and street address in their own submitted documentation.

The second injunction did not go unnoticed. With the assistance of several First Amendment and civil liberties groups, Wikileaks was able to overturn the injunction and reclaim its domain name by the 29th of February, 2008, eleven days after the original injunction was issued; and the bank dropped the case a week later.

At no point was any libel, slander, or infringement of copyright ever proven in the courts; nor was any lawsuit filed on that basis. The original cease and desist injunction stood alone, without ever having been submitted to any rigorous examination; and without protest and quite a bit of external financial and legal assistance, the second would have stood as well. Destroying a member of the press is just that easy: even in a part of the world which prides itself on its freedom of speech.

Yet Dyandot had unquestioningly complied with the permanent injunction by immediately locking the domain name.

Fast-forward two years, to the present day and the present release of diplomatic cables.

This week alone, Wikileaks has been subject to a denial-of-service attack, has been forced off Amazon's servers and now its French server, is steadily losing domains, and has been cut off from receiving funds through Moneybookers and Paypal. Access to the document release is now restricted almost entirely to independent mirror domains. For now, Wikileaks still retains its Facebook page. Unless Facebook's CEO is sufficiently independent of his investors to be able to take a stand -- and wishes to do so -- don't expect that to last.

In one of those surreal moments which never make the media, Homeland Security Committee Chair Peter King, United States Secretary of State Hillary Clinton, and Iranian President Mahmoud Ahmadinejad all agreed that the Wikileaks diplomatic cables release was an attack on their respective countries, although only Peter King has claimed that the release was an attack on the international community. Only United States Secretary of Defense Robert Gates has ventured to suggest that reaction to the release was "over-wrought".

More amusingly, the White House Office of Management and Budget expects all unauthorised federal government employees and contractors to avert their eyes from what the world has already seen.

These actions will never be called censorship. As far as the letter of the law is concerned, each of these actions represents the independent decisions of a number of separate corporations. Equally, each corporation has denied acting under political pressure. Instead, each has claimed that Wikileaks violated its terms of service by providing illegal activities. Anyone who tries to work around the ToS by hosting or collecting money for Wikileaks independently risks similarly violating the ToS of any company with which they may be associated.

What will never be said is that those services were not illegal until the moment the United States government opened a federal criminal investigation, and they are still not illegal until charges are actually laid and Wikileaks has been convicted of those charges. To date, no charges have been laid.

All that has happened is that an investigation has been opened, in precisely the same way as HUAC opened its investigation against Communist Party infiltration some fifty-odd years ago. In effect, the moment the United States government opened a federal criminal investigation, those same corporations were given precisely two choices: either sever all ties with Wikileaks and open the relevant documentation to the federal government, or be considered possible accomplices and liable to parallel investigation. Successful prosecution on any such basis against Amazon, Paypal et al is so highly unlikely that it would probably never be initiated: yet the threat suffices to create exactly the same effect as if government pressure had been applied directly.

Let no one who finds this kind of government pressure acceptable say a word against Chinese censorship. At their core, the two are no different.

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