Read the Website a Judge 'Shut Down'

Jacob Sullum | February 20, 2008

"Judge Shuts Down Web Site Specializing in Leaks," says the headline over the New York Times story. The website, Wikileaks, describes its mission this way:

Wikileaks is developing an uncensorable Wikipedia for untraceable mass document leaking and analysis. Our primary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to people of all regions who wish to reveal unethical behavior in their governments and corporations.

As you might guess from the "uncensorable" part and as you can plainly see, Wikileaks is not really shut down. The Times explains:

Judge Jeffrey S. White of Federal District Court in San Francisco granted a permanent injunction ordering Dynadot, the site's domain name registrar, to disable the Wikileaks.org domain name. The order had the effect of locking the front door to the site—a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look.

Domain registrars like Dynadot, Register.com and GoDaddy .com provide domain names—the Web addresses users type into browsers—to Web site operators for a monthly fee. Judge White ordered Dynadot to disable the Wikileaks.org address and "lock" it to prevent the organization from transferring the name to another registrar.

The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works, or how quickly Web communities will move to counter actions they see as hostile to free speech online.

Still, Judge White tried to shut down the website, in response to complaints from a Cayman Islands bank that a disgruntled former employee had used it to post purloined documents. Which suggests the judge did not understand how freedom of speech works. While the former bank employee may have violated a confidentiality agreement and therefore be subject to civil penalties, the people to whom he passes the information are not bound by any such agreement. In the Pentagon Papers case and other First Amendment decisions, the Supreme Court has taken a dim view of attempts to prevent third-party dissemination of heretofore secret or confidential information, let alone attempts to suppress an entire publication because it carried such information. Wikileaks says White's order "is the equivalent of forcing the Times's printers to print blank pages and its power company to turn off press power."

Comments

Fluffy|2.20.08 @ 10:37AM|#

My only hesitation before saying "Hear, hear!" is the fact that we are talking about bank information.

If an identity thief stole your private financial information, and transferred it to me for publication, would you say "While the [identity thief] may have violated [Jacob's privacy] and therefore be subject to civil penalties, the people to whom he passes the information are not bound by any such agreement."

The Wine Commonsewer|2.20.08 @ 10:43AM|#

Point well taken, Fluff. Would we be as open to this if the info published was account access codes (like your debit card code)?

Actually, I think the government is unhappy about this because it seems like this is nuts and bolts info about how to beat the IRS out of their bucket of blood. Downside is that it confirms what we already knew about some or all Cayman Island Banks. And, it will cause the government to redouble its efforts to stop people from avoiding taxes.

|2.20.08 @ 10:56AM|#

Sadly, it's not shocking to see that Judge White was a Bush 43 appointee. "Strict constructionists" my ass.

|2.20.08 @ 11:12AM|#

Like you said, the domain is disabled. The site is not. You can still access it by their IP: http://88.80.13.160/wiki/Wikileaks

|2.20.08 @ 12:01PM|#

I love that the Times gives a big stiff middle finger to the judge by including the IP address and three of the mirror site addresses (with hyperlinks, too) right there in the article. Hehe.

robc|2.20.08 @ 12:02PM|#

On a related not, when seeing the commercials for Untraceable, did anyone else scream out "Thats not how DNS works!!!!"?

Shannon Love|2.20.08 @ 12:12PM|#

In the Pentagon Papers case and other First Amendment decisions, the Supreme Court has taken a dim view of attempts to prevent third-party dissemination of heretofore secret or confidential information, let alone attempts to suppress an entire publication because it carried such information

I think this might be one area of the law, like FISA, rendered obsolete by the internet. Back in the 70's it was presumed that only large institutions like corporations or the government (which require constant monitoring) would be target of such leaks and that the 3rd party publishers would likewise be large institutions.

The internet put an end to that. Today, it could be a private individual's confidential information that gets "leaked", put up online and widely read. For example, do we want to provide 3rd party sites that publish the "leaked" medical records of private individuals? Providing such a loophole would make confidentiality of any information for anybody pretty much a joke.

Personally, I think were headed for David Brin's transparent society but in any case we really need to consider updating laws created 30+ years ago in a radically different technological environment.

Taktix®|2.20.08 @ 12:26PM|#

The internet put an end to that. Today, it could be a private individual's confidential information that gets "leaked", put up online and widely read. For example, do we want to provide 3rd party sites that publish the "leaked" medical records of private individuals? Providing such a loophole would make confidentiality of any information for anybody pretty much a joke.

This hypothetical is a little unfair, as the information that is leaked tends to be leaked for a reason.

It's unlikely some doctor is going to wake up one day and say, "I feel like fucking someone over, I'm going to leak little Johnny's teeth x-rays to the internet."

|2.20.08 @ 1:02PM|#

If an identity thief stole your private financial information, and transferred it to me for publication . . .

1. That would amount to crimes because they are helping someone steal money from you, not by virtue of mere disclosure. That kind of disclosure can still be forbidden and should not be confused with the type of disclosure wikileaks is making.

2. As far as an expectation of privacy in your bank records generally, independent of enabling someone else to commit conversion on yer $$$, let's hear what SCOTUS has to say:

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy. He relies on this Court's statement in Katz v. United States, 389 U. S. 347, 353 (1967), quoting Warden v. Hayden, 387 U. S. 294, 304 (1967), that "we have . . . departed from the narrow view" that "property interests control the right of the Government to search and seize,'" and that a "search and seizure" become unreasonable when the Government's activities violate "the privacy upon which [a person] justifiably relie[s]." But in Katz, the Court also stressed that "[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." 389 U.S. at 351. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate "expectation of privacy" concerning their contents. Cf. Couch v. United States, 409 U. S. 322, 335 (1973).

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications, but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they "have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings." 12 U.S.C. § 1829b(a)(1). Cf. Couch v. United States, supra at 409 U. S. 335.

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U. S. 745, 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 401 U. S. 752; Hoffa v. United States, 385 U.S. at 302; Lopez v. United States, 373 U. S. 427 (1963). [Footnote 4]

. . .

Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued.

Senator Ted Stevens|2.20.08 @ 1:39PM|#

The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works

Ha! The dumbass doesn't know that the only way to prevent access to an Internet site is to block the series of tubes leading to it.

Shannon Love|2.20.08 @ 2:15PM|#

Recently a rather interesting publication did an article on why ordinary, honest, law abiding people should fear a loss of privacy. The name of the publication escapes me at the moment.

We protect privacy mostly by legally restricting the uses to which protected information can be put to. If you illegally obtain someone's medical records you can't use them in court but if you find them posted anonymously online, what then?

|2.20.08 @ 6:05PM|#

"It's unlikely some doctor is going to wake up one day and say, "I feel like fucking someone over, I'm going to leak little Johnny's teeth x-rays to the internet."


Perhaps, but its all too likely that someone will wake up one day and say "I feel liking fucking over my ex. I'm leaking her entire medical history to the internet - especially those two abortions and the recent lab tests".

|2.20.08 @ 8:05PM|#

On the other hand, when it comes to governments it is somewhat satisfying to finally say "If you have nothing to hide, you have nothing to fear"...

|2.20.08 @ 10:17PM|#

Don't you see? If we test international law over twiddles like this, sooner or later we will arrive at a less free internet. Banking is a particularly dangerous area to tred into because courts of law recognize Banks. Eventually we are going to end up with a less free internet just because some smart group with too much time on their hands thinks it is just too funny to let go of. Do us all a favor, let the fringes remain fringe before effective counter-measures become international law.